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26 Jule
As the resolution of the Moscow district from 05.06.2017 № A40-185135/16

In the Resolution, as Moscow district on 05.06.2017 № A40-185135/16 noted that the lack of a postcode application for state registration of a legal entity is grounds for refusal of registration. The point is this. The tax Inspectorate refused to register the Organization due to the fact that the application form Р11001 were not filled paragraph 2.1 of section 2 (not specified zip code). Tax officials said that the information about the address (location) of a legal entity could not be regarded as complete and accurate. In deciding in favor of inspections, the court pointed to the following. The applicant shall submit accurate and complete address information created by the organization. Address of the legal entity is a mandatory requisite of the application for registration. The location of the company is essential. In particular, they determined the place of performance of obligations, payment of taxes, jurisdiction of disputes. The indication of false information in constituent documents affecting the economic interests of an indefinite circle of persons who can enter into a relationship with society. Submission of incomplete address information equivalent to the submission of false information created by the organization. And this is the basis for refusal in registration of the legal entity (clause 1 of article 23 of the Federal law from 08.08.2001 № 129-FZ). Because in this situation, index information is absent, the court found the refusal of the inspection of registration is valid. The argument of the Organization that an index has been specified in the letter of guarantee and the registration authority could make the missing information, the court rejected. Justification —a letter of guarantee is not a document required for registration of a legal entity. In addition, the inspection is not obliged to rectify the documents submitted with incomplete, missing data.
19 Jule
The decision of the Supreme court of 30.05.2017 No. 78-АД17-19

In the Judgment of the Supreme court of 30.05.2017 No. 78-АД17-19 noted that employers or customers of services who has concluded an employment contract or civil law contract on performance of works (rendering of services) with the citizen of the Republic of Belarus do not need to notify the migration service. The point is this. Under current law, employers and customers of works (services), involving for work of foreigners, are obliged to notify the territorial bodies of the FMS of Russia about the conclusion and termination (cancellation) of such employees employment and civil contracts. This must be done no later than three working days from the date of conclusion (termination, termination) of the contract (paragraph 8 of article 13 of the Federal law from 25.07.2002 № 115-FZ). Failure to notify the FMS on hiring a foreigner involves a serious fine or suspension of activity (h 3 and part 4 of article 18.15 of the administrative code). A similar problem faced the organization from St. Petersburg. She was fined 400 thousand rubles for the fact that you did not notify the migration service about the employment of the citizen of the Republic of Belarus. However, the Supreme court ruled the penalty illegal. He referred to the decision of the High Council of Community of Belarus and Russia from 22.06.1996 No. 4. In paragraph 1 of this document reads as follows: acting on the basis of national legislation, the regulation of attraction and use of foreign labor force in relation to the citizens of the Republic of Belarus in the Russian Federation is not applied. The citizens of the state of departure, engaged in labor activities on the territory of the state of employment shall enjoy equal rights with citizens of the state of employment in pay, working time and rest time, health and working conditions, and other matters of labour relations. From the mentioned document says that in respect of the citizens of the Republic of Belarus employed in Russia, and their employers, the provisions of the Law № 115-FZ does not apply. Consequently, even if the employer did not notify the FMS on hiring a citizen of Belarus, it is not the basis for the penalty under article 18.15 of the administrative code.
12 Jule
As the resolution of the Moscow district from 25.05.2017 No. F05-6488/2017

In the Resolution, as Moscow district on 25.05.2017 No. F05-6488/2017 noted that, if the payment system for payment of tax charged in a "troubled" Bank before the expiry of the payment deadline, then to read "stuck" payment in payment of arrears will not work. In this case, the taxpayer will have to pay tax again. The point is this. The organization has made to the Bank payment order for payment of the single tax STS. The Bank has debited the amount from the settlement account of the organization, but the money did not reach the destination due to lack of funds in the correspondent account. After some time, credit institutions have been revoked license. Because funds in the budget is not received, the inspection has exposed the requirement about payment of arrears. In response, the taxpayer sent the IRS a letter in which asked to recognize the obligation to pay tax for the year fulfilled. But representatives FNS have refused to offset these amounts, recognizing the organization's actions unfair. The courts of three instances agreed with the auditors, stating the following. The organization has made to the Bank payment order for payment of the single tax on January 16. While an annual Declaration with the declared amount of tax payable filed with the on March 31. That is a controversial payment system was presented to the Bank before the taxpayer became obliged to pay tax. In addition, information about the financial instability of the Bank was published on the Internet. Accordingly, the organization could pay the tax through the current account opened with another Bank. Transfer of funds before the deadline of tax payment and taxpayer awareness about the problems of the banking organizations is evidence of its misconduct, said judges. In the end, the arbitrators refused to recognize the obligation to pay the single tax have been fulfilled and ordered the taxpayer to pay the disputed amount of arrears.
03 Jule
Resolution as the far Eastern Federal district from 25.05.2017 № F03-1760/2017

In the Resolution as the far Eastern Federal district from 25.05.2017 № F03-1760/2017 noted that the period of leave child care employee (mother, father, child, other person actually caring for the child) on his application can work on a part-time job with retention of the right to receive benefits (clause 3 of article 256 of the LC RF). It is entitled to "child's" benefit during long trips such employee is not retained. The point is this. The worker who was on leave to care for a child up to six years, went to work on conditions of incomplete working day. After some time she was sent on a business trip to another city for a few months. During business trips the employee had received average earnings, and "children's" allowance. According to inspectors from the FSS, in the absence of the place of residence of the child, the employee actually had the opportunity to care for the child. So, allowance for the period of the trip she paid improperly. In addition, representatives of FSS refused to offset the costs for the payment of "child" benefits for the period after a trip. As stated in the Fund, upon returning from business trip the worker had to file a leave to care for a child. Because the statements from her were not, then the benefit is not expected. The courts of three instances stated the following. An employee who, during leave to care for the child was sent for a few months on a business trip, had no actual ability to care for the child. Therefore, the "child's" benefit for the period she is not supposed to. However, with the decision of the FSS in terms of failure to offset the cost of benefits for the period after the end of the assignment judge did not agree. Rationale — the legislation does not provide re-apply for the allowance in the case of departure of the employee on a business trip.
27 June
As the resolution of the Moscow district № A40-125687/2016

The Resolution as 10.03.2017 from the Moscow district (case number A40-125687/2016) noted that the tax law comes from the fact that VAT is an important fact of posting of goods (works, services) in accounting. The bill, which capitalized goods (works, services) in this case does not matter. Fact reflect the cost of purchased goods (works, services) on account 08, and not on account 01 cannot serve as a basis for extension of the period provided for in clause 2 of article 173 of the tax code within which the organization can exercise their right to deduction of tax amounts.
21 June
As the resolution of the Moscow district from 09.03.2017, № A40-114424/2016

The Resolution as 09.03.2017 from the Moscow district (case number A40-114424/2016) with reference to paragraph 3 of article 269 and article 4 of RSFSR Law of 22.03.1991 No. 948-1 "On competition and restriction of monopolistic activity on commodity markets" noted that affiliated persons - individuals and legal entities, capable of exerting influence on legal entities and (or) physical persons engaged in entrepreneurial activities. Therefore, a controlled taxpayer debts to foreign organization, recognized the outstanding debt if the amount of such debt is more than 12.5 times the difference between the amount of the taxpayer's assets and the value of the taxpayer's obligations before the Russian organization that has the right to dispose more than 20 per cent of the authorized (share) capital (Fund) of a foreign company (legal entity) directly or indirectly owning more than 20 percent authorized (share) capital (Fund) of the taxpayer. Outstanding debt the amount of which is more than 12.5 times the difference between the amount of the taxpayer's assets and the value of the taxpayer's obligations before the Russian organization that is deemed a controlled debt of the taxpayer to foreign organization if the Russian organization has the right to dispose more than 20 per cent of the authorized (share) capital (Fund) of a foreign company (legal entity) directly or indirectly owning more than 20 percent authorized (share) capital (Fund) of the taxpayer.
31 May
The decision as Ural district from 21.02.2017 №F09-94/17

The Resolution as Ural district from 21.02.2017 №F09-94/17 noted that if the FSS established organization or entrepreneur discount rate for insurance contributions "injury", then he cannot undo his decision, citing the fact that the insured did not timely contributions. The point is this. In October 2013, the Department of social insurance Fund established organization discount rate for insurance contributions "injury" for 2014 in the amount of 29 percent. But in 2015, after the inspection, inspectors found that in 2013, the organization did not timely contributions for April, may and June. In this regard, the Fund issued a decree on the abolition of the established discounts, and assessed additional contributions for 2014 in connection with the cancellation of the discount. As stated by the representatives of the FSS, the insured was in breach of paragraph 8 of the Rules establish discounts and surcharges (app. resolution of the Russian government of 30.05.2012 No. 524; hereinafter — the Rules). Under this paragraph, one of the conditions for the establishment of a discount is the timely payment of current insurance premiums. The courts of three instances have decided that the cancellation of previously granted and used by the insurer discounts is impossible. The arbitrators noted that at the time of application with a statement of discount contributions receivable the organization was not. And the reason for the infringement of terms of payment of insurance premiums for April, may and June 2013 was an unplanned deterioration in 2013, the economic condition of the enterprise. Moreover, the Fund knew about this at the time of adoption of the decision on granting discounts. In addition, at the time of issuance of the order in 2015 the price has ended. Since the Rules do not establish the procedure and grounds for cancellation of discounts and allowances, and on the date of filing of application about granting of discounts (October 2013) arrears in contributions was not contested then the order of the Fund is illegal.
25 May
The determination of the Supreme court of 06.04.2017 No. 306-КГ17-2349

The Supreme court of the Russian Federation in Definition from 06.04.2017 No. 306-КГ17-2349 came to the conclusion that the amount of monetary rewards for many years of diligent work and in connection with the anniversary date are not remunerated. In this regard, these payments in the base for calculation of insurance premiums are not included. The point is this. The inspectors of the RPF assessed that the organization of insurance contributions on the amount of bonuses paid to employees for many years of diligent work and in connection with anniversaries. According to inspectors, these payments are a form of remuneration, and therefore should be subject to contributions. However, the courts of all instances, including the Supreme court decision disagreed, stating the following. According to article 129 of the labour code wages (wage worker) is remuneration for work depending on qualification of the worker, complexity, quantity, quality and conditions of work, as well as compensation and incentive payments. And in this case, the disputed payments were of social character. So, employee premiums were paid on the basis of a local act (Provisions on corporate social programmes). In this document it is agreed that the employer shall pay a lump sum remuneration in order to strengthen corporate culture, maintain the corporate spirit and commitment of employees to the enterprise. The corporate flat fee includes: one-time payment to the anniversary date, a lump-sum compensation to the employee in connection with the awarding of honors and awards. Thus, the amounts paid in premiums associated with the anniversary date of the date of birth or anniversary of employment, are not stimulating, as it does not depend on the skills of workers are non-recurring. Consequently, these awards are not wages and insurance premiums are not taxed.
23 May
The determination of the Supreme court of 10.05.2017 No. 302-КГ17-3832

The Supreme court of the Russian Federation in Definition from 10.05.2017 No. 302-КГ17-3832 came to the conclusion, that otsutstvie of experience of the employee, trudoustroeno before maternity leave, combined with other circumstances, evidences not in favor of the employer (e.g., the relationship of the pregnant woman with the head), may be grounds for denial of reimbursement of maternity benefits. The point is this. Office of FSS denied the company reimbursement for the payment of benefits for pregnancy and childbirth. The reasons for this. The first — from the date of registration as an individual entrepreneur until the moment of employment of the employee, the entrepreneur carried out activities on their own, without employees. Evidence that during this period increased the amount of work the insured had not submitted. Second — this worker is the daughter of the owner, and was hired four months before maternity leave. Third — at the time of employment this employee had no experience or seniority. The court recognized the legitimate refusal of the Fund. As pointed out by the arbitrators, the insured did not prove the reality of labour relations, the availability of relevant education and experience of the employee. This suggests that the daughter of the businessman was intentionally employed before the occurrence of the insured event in order to illegally obtain funds from the budget.
15 May
The determination of the Supreme court of 18.04.2017 No. 304-КГ16-16937

The Supreme court of the Russian Federation in Definition from 18.04.2017 No. 304-КГ16-16937 came to the conclusion that the Individual entrepreneur, who applies the USN with the object of taxation is income minus expenses, is entitled to determine the income for calculating insurance contributions "for themselves" on the basis of the difference between revenues and expenditures. The point is this. Individual entrepreneur, applying USN, the annual income of which exceeds 300 000 rubles, calculated the additional contribution to the pension Fund on the basis of the difference between revenues and expenditures. However, the inspectors from the office of the FIU stated that entrepreneur, applying USN, calculate pension contributions based on the full amount of income received. In this situation, according to information from the IRS, income entrepreneur in 2014 amounted to about 30 million rubles. So the owner had to transfer to the pension Fund more than 121 thousand rubles. As the contributions in full I have not been paid, the auditors of the FIU has exposed the requirement about payment of arrears and accrued interest. The courts of three instances agreed with the auditors: for calculation of contributions income of the entrepreneur"promedica" in excess of 300 000 rubles, it is necessary to consider only the revenues specified in article 346.15 of the Tax code. This article provides that in determining the object of taxation are taken into account revenues and non-operating income. Hence, SP may not reduce the amount of income to costs in the calculation of an additional insurance premium. However, the Supreme court, this position did not agree and sent the case for review. While the Supreme court has referred to the decision of the constitutional court from 30.11.2016 No. 27 in General, this decision concerned entrepreneurs BASED on. The court explained that the income of an individual entrepreneur, paying income tax and not producing payments to natural persons, shall be reduced by the amount of documented expenses, in accordance with the accounting rules for such costs for purposes of calculating and paying personal income tax. In turn, the Supreme court noted that the principle of determining the object of taxation, payers of personal income tax is similar to the principle of determining the object of taxation for "promensil" with the object of taxation revenue minus expenses. Latest reduce the received income calculated in accordance with article 346.15 of NK of the Russian Federation, in accordance with article 346.16 of the RF tax code the expenses. In this regard, the conclusion of the COP applies to businesses-"promensil", concluded the Supreme court. Reversing the lower courts ' decisions and sent the case for retrial, the armed forces, essentially ruled in favor of the entrepreneur to the USN: annual income is defined as the difference between revenues and expenditures.
12 May
The resolution of as Severo-the Caucasian district from 28.03.2017 № A32-34355/2016

In the Decision of the AU Severo-the Caucasian district from 28.03.2017 № A32-34355/2016 noted that if all the entries in the certificate of incapacity are read, the inspection of the FSS is not entitled to refuse the appointment of and payment of benefits solely on the basis that sick leave is filled in a ballpoint pen instead of ink. The point is this. The territorial authority FSS has not taken to offset the cost of the organization for the payment of sick leave benefits due to the fact that the doctor signed the certificate of incapacity with a ballpoint pen (with blue ink). He thus violated paragraph 56 of the issuance of sick leave, approved by order of the health Ministry of Russia dated 29.06.2011 No. 624н. The paragraph stated that the records in the Gazette are a black ink or with the use of printing devices. Allowed the use of a gel, capillary or fountain pen. To write with a ballpoint pen is prohibited. But the courts of three instances with the position of the officials disagreed. As pointed out by the arbitrators, irregularities in the registration of sick leave are small. However, they never admitted by the employer and medical institution. In addition, the FSS letter dated 30.09.2011 No. 14-03-11/15-11575 explained next. The presence of sick leave technical issues of filling does not give the employer the right to require renewal of a certificate of incapacity to refuse the appointment and benefits, if all the entries in the certificate of incapacity to read. Given that the fact of occurrence of insured event and payment of hospital in dispute was affirmed, the court recognized the failure of the Fund to offset expenses for the payment of benefits illegal.
11 May
Resolution as the far Eastern Federal district from 10.04.2017 № F03-924/2017

In the Resolution as the far Eastern Federal district from 10.04.2017 № F03-924/2017 noted that if the insured corrected the error after the deadline for submission of SCB-M, but before she found the pension Fund, the reason for the penalty FIU no. The point is this. The organization in due time submitted to the FIU data of the individual personified account in the form of szv-M in may 2016. Later when reporting the error, the insured sent a complementing form. Representatives of the RPF assessed the situation. Because the original information was incorrect, but complementary form sent outside the deadline for submission of reports, the organization has provided incomplete and incorrect information on insured persons. And such violation shall be subject to prosecution under article 17 of the Federal law dated 01.04.1996 № 27-FZ. (According to this rule, the penalty for failure to file form szv-M within the prescribed period is 500 rubles for each insured person). In the end, the organization was fined 10500 rubles. However, the courts of three instances with the position of the Fund did not agree, stating the following. Pursuant to article 15 of Law 27-FZ, the policyholder is entitled to Supplement and clarify the information given to them about the insured persons in coordination with relevant body of the Pension Fund. In this case, the organization corrected the error before it was discovered in the Foundation. This circumstance proves the absence of fault of the insured. Referees reminded reviewers that the formal approach to the imposition of penalty was invalid. Any sanction should be applied taking into account a number of principles: culpability and wrongfulness of the act, the proportionality of punishment, the presumption of innocence. The court also referred to the letter of the FIU from 14.12.2004 № KA-09-25/13379. It explained that the FIU considers it possible not to apply the penalty provided for in article 17 of Law No. 27-FZ in the following cases:
  • if the insured is self-identified the error and provided reliable information in the personified accounting;
  • if it is within two weeks corrected discovered by the territorial authority FIU error.
03 May
The decision as Severo-the Western district from 07.04.2017 № A56-29135/2016

n the Resolution as the Northwest district of 07.04.2017 № A56-29135/2016 noted that the non-payment or incomplete payment of amounts of tax as a result of understating of tax base or for some other reason, is punishable by a fine in the amount of 20 percent of the unpaid amount (article 122 of the tax code). But, if the taxpayer has overpaid tax in the amount exceeding the arrears, the inspectors have the right not to be fined. The point is this. After the inspection, the Inspectorate assessed additional income, VAT, and bring her to justice under article 122 of the Tax code for failure to pay tax for the fourth quarter. The taxpayer challenged the penalty in court. The study — he had an overpayment on VAT for the previous period, exceeding the arrears arose. Because the debt tax was not prosecuted illegally. The courts of first and appeal instances recognised the penalty lawful. However, the court of cassation supported the organization. Judges are reminded of the explanations of the Plenum of the RF set out in the resolution dated 30.07.2013 n 57. It States that to prosecute under article 122 of the Code, if the actions (inaction) of the person led to failure to pay (incomplete payment) tax, that is to the debt. And such debt does not occur if all the following conditions are met:
  • on the expiration date of the tax for the tax period for which the arrears accrued, the taxpayer had an overpayment of the same tax that is understated, in an amount not less than the understated tax amount;
  • at the time of issuance of inspection decisions on the results of a tax audit, the overpayment has not been offset against other debts of the taxpayer.
Thus, since the overpayment of tax in earlier period covers the amount of arrears, the grounds for the charge of fines and bringing the Organization to justice was not, said the court.
12 April
Decree of the AU of the East-Siberian region from 01.03.2017 №А19-10707 / 2016

In the resolution of the AU of the East Siberian region of 01.03.2017 NoA19-10707 / 2016 it was noted that if the original of the birth certificate of the child is lost, the costs of paying the "child" allowance can be confirmed by a copy. The crux of the matter is as follows. The payment of a lump sum for the birth of a child is made by the employer at the expense of the Social Insurance Fund. The procedure and conditions for the appointment and payment of state benefits to citizens with children (hereinafter referred to as the Procedure) was approved by Order No. 1012n of the Ministry of Health and Social Development of the Russian Federation of December 23, Paragraph 28 of this Procedure stipulates that for the payment of a lump sum, a birth certificate is required, among other things. The organization paid a one-time benefit to the employee, and applied to the FSS branch for reimbursement of funds. The original of the certificate at the time of verification was lost, and a copy of this reference was provided instead. However, representatives of the FSS did not take into account the costs of payment of benefits. Rationale - The procedure does not provide that a copy of this certificate may be provided for the purpose and payment of a lump sum at the birth of the child. The courts of three instances recognized the decision of the fund as unreasonable, pointing to the following. The basis for the appointment and payment of insurance coverage to the insured person is the occurrence of a documented insurance event (Article 22 of Federal Law No. 165-FZ of July 16, 1999 "On the Fundamentals of Mandatory Social Insurance"). The insured event on compulsory social insurance is recognized, including the birth of a child (children). In this case, the onset of the insured event (the birth of a child) is proved. During the audit, the organization submitted a copy of the child's birth certificate. In this case, the allowance was paid to the employee on the basis of the original document. In view of the foregoing, the court concluded: the failure to provide a certificate of birth of the child in the framework of the original verification does not indicate a violation of the procedure for payment of benefits.
29 March
Resolution No. Ф01-6260 / 2016 of the AU of the Volga-Vyatka District

In Resolution No. Ф01-6260 / 2016 of the Volga-Vyatka District on 06.02.2017, the Voluntary Circuit Circuit circulated the conclusion made by the Constitutional Court regarding the individual applying the FASP regime to Individual Entrepreneurs applying the USN "income minus expenditures" regime. The court's decision and the arguments used in it allow us to conclude that the IP at the USN-15% can determine the amount of income for calculating the amount of insurance premium for TSOs as the difference between income and expenses. The crux of the matter is as follows. The amount of "pension" insurance premiums paid by the entrepreneur "for himself" depends on the annual income of the IP. If the income is not more than 300,000 rubles, the amount of payment is fixed. And if the annual income is above 300,000 rubles, then the IP must pay an additional 1% of the amount of income exceeding this amount, but not more than the maximum amount of insurance premiums set by the FIU. The court considered the following dispute. According to the Individual entrepreneur applying the STS regime 15%, the annual income from which an additional insurance premium is calculated is defined as the difference between income and expenses. However, the controllers from the FIU management stated that the SP on the CSS should expect "pension" contributions based on the full amount of the income received. Since the contributions were not paid in full, the controllers demanded payment of arrears and charged penalties. The courts of the first and appellate instances supported the inspectors. But the arbitration court of the Volga-Vyatka District did not agree with the decision of the lower courts, and sent the case for a new consideration. As an argument in favor of such a decision, the arbitrators cited the recent ruling of the Constitutional Court of November 30, 2016 No. 27-P. It is curious that this decision of the Constitutional Court was directed at entrepreneurs on the basis of the OCOG. Recall, the high court pointed to the following. When calculating the tax base for personal income tax, individual entrepreneurs have the right to reduce their income by the amount of documented expenses directly related to the extraction of income (professional tax deduction). The composition of expenses is determined in the manner analogous to that established for the purposes of taxation of profit (Clause 1, Article 221 of the Tax Code of the Russian Federation). Under the profit, as a general rule, is understood income, reduced by expenditure. In spite of the fact that in this decision of the Constitutional Court of the Russian Federation nothing is said about the USN and the single tax, the arbitration court decided that the court's conclusion could be extended to the applicants using the USN regime of 15%. As a result, the court of cassation overturned the decisions of the courts of the first and appellate instances, sending the case for new consideration.
25 August
The Regulation of FAS West Siberian District from 07.04.2016 number A67-6704 / 2015 noted

that the money paid to employees under the direction of their one-day trips are not included in the base for the calculation of insurance premiums. The point is this. Order on establishment of norms of daily stipulated that employees who are sent on business trips, daily allowances in the amount of 700 rubles, and in the case of one-day trips in connection with business necessity -. "Compensatory payment" in the amount of 700 rubles. These payments in the base for calculation of insurance premiums are not included. The inspectors from the FIU management said that the day when one-day trips are not provided by the legislation. Consequently, these payments had to charge premiums. The courts of three instances decided in favor of the organization. As explained by the referees, the disputed payments are not daily in view of the definition contained in the labor legislation. However, based on the direction and content of these economic benefits, they can be recognized as reimbursement of other expenses related to official business, which are produced with the knowledge or permission of the employer. In this connection, said "compensation payment" are not income (economic benefits) of employees aimed at a one-day trip. Since the costs of employees are documented, that these funds are not subject to insurance contributions on the basis of Article 9 of the Federal Law of 24.07.09 number 212-FZ.
23 August
The Regulation of FAS Volga-Vyatka district from 7/18/2016 number A82-13922 / 2015 noted

That compensation for the cost of meals not provided the employment contract is of a social character, is not an element of remuneration and, therefore, not subject to insurance contributions. The point is this. In accordance with the collective agreement the employer partially paid employees set meals in the dining room on the premises. The amounts of compensation to the base for the calculation of insurance premiums were not included. Inspectors FSS stated that the payments made in the framework of the employment relationship, and, accordingly, are subject to contribution under Article 7 of the Federal Law of 24.07.09 № 212-FZ (hereinafter - the Law № 212-FZ). However, the court did not accept the position of the FSS on the basis of the following arguments. Compensation paid the cost of power in accordance with section 3 "Social Guarantees" of the collective agreement, that is, wearing a social character. It did not depend on the qualifications of employees, complexity, quality of performance, not an element of remuneration, including because it was not available for employment contracts. Consequently, this payment is not recognized the object of taxation of insurance premiums.
12 August
In the definition of the Russian Armed Forces from 01.08.2016, № 305-KG16-5939 with reference to Art. 270 of the Tax Code noted

that the payment of severance pay to dismissed workers (compensation) to terminate the contract agreement between the parties not part of the labor costs and has not been established in the form of compensatory payments under the provisions of the Labour Code. Agreement on Amendments to the labor contract workers, according to which to terminate the contract in accordance with para. 1, Art. 77 of the Labour Code, the employer is obliged not later than the date of termination of the employment relationship between the employee and the employer to make a payment of additional financial compensation, legally not recognized by the courts as an integral part of the employment contract, because it does not contain any data and (or) the conditions required to be included in the labor force contract, and concluded shortly before its dissolution.
11 August
The Regulation of FAS Moscow District of 01.04.2016g. (Case A40-107960 / 2015 number) noted

That the fact of not signing the original documents by representatives of the counterparty company indicates non-acceptance According to the counterparty of goods and works referred to in these documents, which confirms the lack of implementation of these goods and works, but because of lack of evidence of transfer of goods and works and the transfer of ownership is not the fact of their implementation, that does not allow to speak about the formation of the society of the VAT tax base. Taking into account the norms of art. 247 and 248 of the Tax Code, Art. 9 of the Federal Law "On Accounting" if the customer has not accepted the goods and works, the company had no legal grounds to take no for accounting or for tax accounting are primary documents that also eliminates their implementation for taxation on profit goals.
10 August
The Supreme Court ruling of 20.06.2016, the number AKPI16-435 noted

That Nos. 5 para. 1, Art. 32 of the Tax Code, prescribing the tax authorities to be guided by written explanations Russian Ministry of Finance on the use of the RF legislation on taxes and duties, does not oblige the tax authorities be guided by the Russian Finance Ministry replies addressed to specific applicants, rather than the tax authorities. As a response to individual treatment (as acts of casual interpretation), the data to authorized federal executive body, within its competence, they do not contain provisions on the rights and duties personally not certain circle of persons, are information-explanatory nature. The fact that regardless of the actions of the Russian Finance Ministry, unless otherwise established, disputed letters to editorial corrections have been placed in an electronic periodical (Legal Consultant Server, www.consultant.ru), specializing in the dissemination of legal information, does not confirm the existence of these regulations properties.
09 August
In the definition of the Russian Armed Forces from 21.06.2016, № 301-KG16-6246 with reference to the provisions of Articles 252, 255, 270 of the Tax Code, Articles 57, 178 of the Labour Code mentioned

that the lump-sum payment upon termination of the employment contract by mutual agreement are not industrial nature, not related to the compensation of employees and the performance of their official duties, because there are no grounds for taking them into account when determining the taxable base for income tax organization.
08 August
Russian Armed Forces Ruling on 06.01.2016, the number 307-KG16-5452

In the definition of the Russian Armed Forces from 06.01.2016, № 307-KG16-5452 citing Articles 5,7,8,9 Federal Law of 24.07.2009 № 212-FZ "On Insurance Contributions", Articles 129, 164, 168.1 of the Labour Code of the Russian Federation noted that the compensation for travel on public transport within a specified maximum amount of workers' compensation, constant work which has traveling character included in the job list, entitled to receive such payments made on the basis of local regulations acts of society, are social in nature, are not challenging, do not depend on the skills of workers and the results of labor, complexity, quality, quantity, terms of execution of the work itself, are not pay and do not belong to the remuneration for the performance of labor or other duties, or for material gain, do not have a systematic character, in connection with which these payments are not subject to insurance contributions.
05 August
Information letter of the Presidium of the Russian Armed Forces from 07.06.2016, the (Determination of number 305 KG15-14263) brought

That the power to control prices used in transactions between related parties, for their compliance with market prices has a Central Office of the Federal Tax Service of Russia, but not territorial tax authorities (Sec. 2, Art. 105.3, para. 1, Art. 105.5, pp. 1 6 Art. 105.6, para. 1, Art. 105.7, Art. 105.17 of the tax Code. at the same time the interdependence of the participants of transactions itself is not proof of receipt by the taxpayer unjustified tax benefit, and can have legal significance for the purpose of tax control, only if it is established that such interdependence is used participants of the transaction as an opportunity for concerted action, not due to reasonable economic or other reasons.
04 August
The Russian Ruling of the Constitutional Court of 06.06.2016, № 1170-On noted

That the members of the Board of Directors and the Audit Commission, while agreeing on the implementation of certain activities in the public interest, take on the responsibility for the implementation of the necessary for this function to manage and (or) control over the activities of the society. This involves the implementation of such activities provided by the law society benefits in favor of members of the Board of Directors and the Audit Commission for the decision of the general meeting of shareholders. In this case the payment of the remuneration may be based on the decision of the general meeting of shareholders as in the presence of the relevant conditions in the contract concluded between a member of the Board of Directors or the Audit Commission and the public, and in the absence of such an agreement. Therefore, these payments should be charged insurance premiums in accordance with the Federal Law of 24.07.2009 № 212-FZ "On insurance premiums."
03 August
The Regulation of FAS West Siberian District in the judgment of 24.5.2016 number A27-8705 / 2015 noted

That the amount of VAT accrual of inspection during the audit, could be included in expenses for profits tax purposes. The point is this. When calculating the tax on profit of organizations included in the VAT expenses, accrual of inspection in connection with the unjustified use of taxpayer UTII. However, the inspectors took off costs. Justification - specified amount of VAT subject to the rules of paragraph 19 of article 270 of the Tax Code, which prohibits to take into account the amount of tax as an expense. The court's decision The court upheld the taxpayer, pointing to the next. In paragraph 19 of article 270 of the Tax Code states that the calculation of income tax is not accounted for tax imposed on buyers of goods. And in this case the VAT accrual of inspection during the inspection, buyers did not show, could not be chargeable to them and, accordingly, is subject to payment of the own funds of the organization. Consequently, the amount of VAT, additionally accrued in connection with the unjustified use of UTII included in expenses for income tax on the basis of paragraph 1 of Article 264 of the Tax Code.
02 August
Regulation of FAS Moscow District dated 06.29.2016 number A40-158373 / 2014 noted

that the fact that the organization wrongly accrued premiums on non-taxable payment, does not give her the right to include the amount of these contributions to the costs of the taxation of profits. The point is this. Insurance premiums in the non-budgetary funds are debited in other expenses on the basis of subparagraph 1 of paragraph 1 of Article 264 of the Tax Code. Guided by this standard, the organization has taken into account in the costs of profit tax the amount of insurance premiums, calculated with scholarships for apprenticeship agreements. However, the inspection took off costs and assessed additional income tax. The reason - the payment of apprenticeship agreements are not subject to insurance contributions. The court agreed with the inspection, specifying the following. In this situation, according to apprenticeship agreements, employees were required to be trained and work under an employment contract with the employer for at least three years. Scholarship students are paid does not depend on the skill, complexity, quality, specific conditions for carrying out the work itself, and therefore is not recognized wages. Thus, since the subject of apprenticeship contract is not the fulfillment of the labor functions scholarship that is paid trainee person, including workers' organizations are not subject to insurance contributions. Accordingly, wrongly paid premiums are not deductible.
01 August
Russia's Supreme Court in ruling dated 13/7/2016 number 305 KG16-6052 concluded

The Russian Supreme Court ruling dated 13/7/2016 number 305 KG16-6052 came to the conclusion that the decision by the verification must be signed by the official who considered the case materials. If the inspection report and the objections of the insured examined deputy chief of the RPF, and the decision by the verification was signed by the chief, does not participate in the examination of test materials, it is grounds for cancellation of the decision on additional and penalty. The point is this. The organization asked the court to annul the FIU management decision to charge additional premiums, penalties and fines. Insured referred to the violation of the decision procedure. To express it in that the decision on the audit has been signed by the head of the territorial fund management, who was not involved in the examination of test materials. The court found that the fund actually violated the essential conditions of the examination materials testing procedures. Given the similarity of the tax and legal relations in the payment of premiums in this case, apply the provisions of Resolution of the Plenum of the RF from 30.07.2013 № 57. In paragraph 42 of the resolution states: judgment on the results of consideration of tax inspection materials is not the official of the tax authority, which is considered these materials is a violation of the essential conditions of the procedure of the decision of the audit. Indeed, in this case audited deprived of the opportunity to give an explanation directly to the official, who made the decision. In this situation, check the materials studied deputy chief and chief of the contested decision was made. Thus, considering the circumstances of the audit materials objectively could not be known to the official who did not participate in the consideration of these materials. Contributors, in turn, was unable to give reasoned arguments of the official, who has decided on the audit results. Since the irregularities when considering testing of materials are essential, the court recognized as invalid FIU management solution.
25th July
Russia's Supreme Court in ruling dated 22.6.2016 number 303-KG 16-657 concluded

The Russian Supreme Court ruling dated 22.6.2016 KG16-657 number 303 came to the conclusion that if the VAT in the revised declaration the amount of tax to be recovered has increased or remained unchanged compared with the amount recorded in the initial declaration, the taxpayer is not required to pay interest for using the VAT amounts received in a declarative manner. The point is this. If certain conditions are met (p. 2, 4, 6, 7, Art. 176.1 of the Tax Code), the Organization has the right to use the declarative procedure of VAT reimbursement. In accordance with this order a refund or credit of tax claimed for reimbursement in the declaration, made before the completion of a desk audit of the Declaration. The right to an accelerated VAT refund took the organization of the Magadan Region. The taxpayer submitted a VAT return, presenting recoverable in a declarative procedure tax 40 million. Rubles. Tax Inspectorate decided to VAT refund. Upon receipt thereof, but before the completion of a desk audit of the initial declaration, the organization submitted to the IRS revised declaration. In it the amount of tax to be recovered has been declared in a larger size - 40.1 million rubles.. Because of this inspection it canceled the earlier decision on the VAT refund, as well as accrued interest to the taxpayer referred to in Article 176.1 of the Tax Code for the use of received in the amount of tax declarative manner. The Supreme Court concluded that the calculation of interest on the situation described previously refunded VAT amount unduly. Interest rates established by paragraphs 15 and 17 of Article 176.1 of the Tax Code, according to its legal nature, are compensation for losses incurred by the budget in connection with excessive compensation tax. And in the given situation, the taxpayer's actions did not lead to budget losses and were not unlawful nature. On this basis, the court came to the following conclusion. In the case where "utochnenke" the amount of VAT to be recovered, has changed in a big way compared to the amount contained in the initial declaration, interest on the amount refunded by application of VAT is not charged order.
18th July
The Regulation of FAS West Siberian District in a ruling of 6/8/2016 number A03-9004 / 2015 noted

AC Resolution of the North Caucasus region in its judgment of 6.3.2016 number A20-3122 / 2015 noted that if a mistake when filling a leaf of invalidity admitted medical institution, but the fact of the disease FSS employee does not dispute the grounds for refusing to accept offset costs on benefits for such sick leave does not. The point is this. Social Security Fund did not take to offset costs in the amount of 562 thousand. Rubles for the payment of temporary disability benefits. The reason - the certificate of incapacity have been issued in violation of the Order granting sick leave (approved by Order of the RF Ministry of Public Health from 29.06.2011 № 624n; hereinafter - the Order № 624n.). In particular, in a document signature physician absent in the other - correcting entry was entered incorrectly. The courts of three instances recognized fund unjustified refusal. Referees were reminded verified that the basis for the appointment and payment of insurance coverage is offensive documented accident. This is stated in Article 22 of the Federal Law of 16.07.99 number 165-FZ. In the present case, the facts of occurrence of insurance claims were not challenged in the form of temporary disability. With regard to the violation of the order number 624n when filling sick leave, these violations were committed employees of the hospital. The negative consequences of non-compliance with medical institutions of the current legislation are assigned directly to them, rather than the policyholder. After all, the employer has no right to control the correctness of sick leave (the decision of the RF from 11.12.2012 № 10605/12). In view of the court came to the following conclusion. Since the errors admitted directly to medical institutions, and the facts are not disputed disability themselves, then the fund had no reason for failing to offset the cost of allowances on controversial sick leave.
4th July
The Regulation of FAS West Siberian District in a ruling of 6/8/2016 number A03-9004 / 2015 noted

AC Resolution of the West Siberian District in a ruling of 8/6/2016 number A03-9004 / 2015 noted that if the temporary disability benefits or childcare paid violations, the Social Security Fund may refuse to reimburse funds (recognizing the costs). However, the charge premiums to the amount of allowances unduly paid by the employer is not entitled to the controllers. The point is this. Due to the incorrect calculation of average earnings and other bugs organization has paid benefits to employees for child care and temporary disability in oversized. In connection with this branch of the FSS refused to set off the overpaid amount and the organization obliged to pay arrears in the amount of missed offset benefits. In this case in the amount of the arrears accrued premiums controllers. The court found additional charging illegal fees, pointing to the next. Insurance premiums are subject to payment of accrued within the employment relationship (Art. 7 of the Federal Law dated 24.07.2009 number 212-FZ). This provision does not provide an absolute calculation of insurance premiums on the amounts to offset missed. After all, they are not automatically benefit in favor of workers in the framework of labor relations. Disputed amounts are allocated to the payment of temporary disability. Therefore, even if the Social Security Fund did not take to offset the amount of allowances, credit additionally on the amount of insurance premiums is not necessary.
27th June
The Regulation of FAS Volga District from 26/04/2016 number F06-7280 / 2016 noted

The Ordinance AS Volga District from 26.4.2016 number F06-7280 / 2016 noted that the transfer of the advance payment of income tax delayed is not a cause for prosecution under article 122 of the Tax Code. The point is this. During the site inspection organization passed a revised declaration of income tax for the I quarter of 2012, for the first half of 2012, for the first half 2013 with supplementary estimates to the amount of tax payable. Tax recalled paragraph 4 of Article 81 of the Tax Code exempts from liability in the event that at the time of adjusting the taxpayer was not aware of an error is detected by the tax authority or the appointment of their on-site inspection. In this case, the refined declaration presented after the organization learned of the appointment of site inspection. Thus, the taxpayer did not fulfill the conditions provided for in paragraph 4 of Article 81 of the Tax Code, which is the basis for the fine on the basis of paragraph 1 of Article 122 of the Tax Code. However, the court upheld the taxpayer. The judges reasoned as follows. According to paragraph 1 of Article 122 of the Tax Code, the non-payment or incomplete tax resulting understatement of the tax base subject to a fine in the amount of 20 percent of the unpaid tax. As can be seen, in this article directly points to the liability in the case of "non-payment or partial payment of amounts of tax." In paragraph 20 of Resolution of the Plenum of 30.07.2013 number 57takzhe clarified: underestimation of the tax base constitutes an offense only if such actions (inaction) have led to the tax debt. Meanwhile, the tax period for income tax is a calendar year. The amount of tax is calculated and paid to the budget for advance payments on an accrual basis, and the recalculation is done at the end of the year. Consequently, the Court concluded that, in the case of non-payment or incomplete payment of the advance payment for any tax to the taxpayer can be fined under article 122 of the Tax Code. Can only be fined for tax evasion rather than advance tax payment.
18th June
The Regulation AC Northwestern District from 06/05/2016 number A26-6841 / 2015 noted

The Regulation AC Northwestern District from 06/05/2016 number A26-6841 / 2015 noted that during the reorganization, a new legal entity in the form of transformation. In this regard, the assignee can not automatically obtain the right to use the simplified tax system, which had its predecessor. To apply the STS mode, the newly formed organization to be 30 days from the statement date of registration to submit a notification to the tax office. This conclusion follows from the decision of the AU Northwestern District from 05/06/2016 number A26-6841 / 2015. The point is this. Prior to the reorganization in the form of transformation (change of legal form), the company applied the simplified system of taxation. Assignee considers that it is entitled to automatically continue to use the simplified tax system. However, the tax authorities stated that STS can be used only after the notification of the transition to the special regime. In paragraph 2 of Article 346.13 of the Tax Code states that such notification shall be submitted no later than 30 calendar days from the date of registration of the newly created organization. In this case, the organization sent a notice after the expiry of this period. Therefore, the grounds for the application of the said special regimes there, decided to tax. The taxpayer appealed to the court. According to the organization, from the provisions of Article 50 of the Tax Code should be that by the newly arisen as a result of reorganization of legal entities, along with other rights and goes right to the use of STS mode. Because the Tax Code does not regulate the procedure for transition to the USN legal entity created by the reorganization, filing the notice within 30 days from the date of the registration statement is not a violation. However, the appeal court recognized the taxpayer's position incorrect, stating the following. Article 50 of the Tax Code defines the order of execution of obligations on payment of taxes (fees, fines and penalties) in the reorganization of the legal entity, rather than the choice of the tax system. As a result of conversion, a new legal entity. On the basis of paragraph 1 of Article 346.11 and paragraph 2 of Article 346.13 of the Tax Code of the RF range of the simplified tax system is the right of the newly created organization, with appropriate expression of the will must be expressed in the notice, which shall be submitted not later than 30 calendar days from the organization setting the date of registration with the tax authority. In this situation, the predecessor of which is applied the simplified tax system, stop the activity. The newly formed organization was set for tax registration November 24, 2014, and the notification of the transition to the USN filed February 20, 2015, that is to say out of time. Consequently, the tax on company rightly pointed out her lack of the right to use the simplified tax system mode.
16th June
The Regulation of FAS Moscow District on 03/24/2016 number A40-35910 / 2015 noted

The Decree of the speaker of the Moscow District 3/24/2016 number A40-35910 / 2015 noted that if the inspectors from the Pension Fund decided to verify, without notifying the insurer of the time and place of the test materials, the decision to charge additional recognized illegal. The point is this. The inspectors from the regional FIU management attracted the insurer liable for failing to pay contributions on the basis of paragraph 1 of Article 46 of the Federal Law dated 24.07.2009 № 212-FZ (hereinafter - the Law № 212-FZ). The organization refused to pay a fine, stating that the fund has not notified it of the time and place of the desk audit materials. Thus, inspectors have made substantial violation of the order of consideration of materials testing. The court's decision The court upheld the insurer, stating the following. Article 39 of the Law № 212-FZ provides that the test person has the right to participate in the review process testing materials. However, his absence is not an obstacle for the investigation verification materials only if the policyholder has been duly notified of the time and place of their consideration. In a dispute that the judge dismantled speaker of the Moscow District, it was found that the audit report did not contain information about the time and place of the test materials. Evidence that the insurer has been notified with the date the consideration of test materials are also provided. Thus, without notifying the organization duly considering the revision of the materials, the Fund deprived of the insured the right to submit objections, explanations and additional documents. This indicates a significant violation of the procedures for handling test material and a ground for annulment of a decision reached as a result of such verification, the court pointed out.
14th June
The Supreme Court of the Russian Federation in Definition from 5/10/2016 No. 310-KG16-3453 has come to a conclusion

The Supreme Court of the Russian Federation in Determination from 5/10/2016 No. 310-KG16-3453 has come to a conclusion that if in the presence of accounts in different credit institutions the taxpayer shows payment orders on transfer of a tax in "problem" bank, and before the end of the tax (reporting) period, then it demonstrates unfair behavior of the Organization. The main point such is. On July 18, 2014 the organization has provided to inspectorate of the declaration for the VAT in II and III quarters with a tax amount to payment 1,4 and 1,08 million rubles respectively. In the same day the taxpayer has shown payment orders on transfer of tax amounts in bank. However in the budget only the part of money has arrived. As it has become clear, the remained amount the bank has charged the taxpayer off the settlement account, but to destination has not listed due to the lack of means on correspondent account. Inspectors have declared that the obligation of the Organization for the tax discharge in this case is not considered completely performed, and have notified the taxpayer on debt on the VAT in the amount of 361 thousand rubles. The trial court has supported the taxpayer, having referred to point 3 of article 45 of the Tax code Russian Federation. According to this regulation, the obligation on tax payment is considered performed from the date of presentation in bank of the order on money transfer from the account of the taxpayer in bank in the presence on it a sufficient cash remaining balance on the maturity day. However courts of higher instances, including the Supreme Court of the Russian Federation, have made the decision for benefit of inspection. Arbitrators have specified unfair actions of the taxpayer. About it, according to judges, witnessed the following. The first. The license at bank has been withdrawn on July 25, that is in a week after sight of payment orders on payment of the VAT. However one week prior to revocation of license the credit institution has suspended acceptance of deposits what repeatedly reported mass media about. The second. The taxpayer did not transfer funds to partners through "problem" bank, money for the account also did not arrive. Actually in this bank only payment orders on transfer of taxes according to which payment due date has not come were arranged. The third. The Organization had an account in other credit institution on which there was enough money for budget contribution of tax payments. After July 15, 2014 the taxpayer made all the calculations with partners through this account. Money transfer on account of payment of the VAT before a payment due date and in case of awareness of the taxpayer on problems at banking organization demonstrates his unfair behavior, judges have specified. Making tax payments through "problem" bank, the taxpayer shall realize possible consequences of not receipt of funds in the budget, however has not taken adequate measures on execution of legally established tax obligation. Taking into account stated, judges have refused to recognize an obligation on the payment of the VAT performed and have obliged the taxpayer to pay a disputed amount of a shortage.
06th June
The resolution EXPERT of the Moscow district from 5/11/2016 it is noted No. F05-5284/2016

In the Resolution EXPERT of the Moscow district from 5/11/2016 it is noted No. F05-5284/2016 that if in a settlement period the worker worked at the same employers, as at the time of a loss occurrence (an illness or a maternity leave), then he can receive hospital or decretive benefit both on principle place of employment, and on place of employment on the terms of external combining jobs. And this order works even if the employee has worked in the organization in combination an incomplete settlement period. The main point such is. The worker has gone on a maternity leave in 2013. At the time of a loss occurrence it has been borrowed from two employers. At the same time on principle place of employment she worked all settlement period (2011 and 2012), and in combination — only one year (2012). The maternity allowance to it was paid by both employers (proceeding from an average salary on each place of employment). However controllers from department Social Insurance Fund have declared that point 2 of article 13 of the Law No. 255-FZ could be applied only if the woman in two calendar years preceding year of a loss occurrence worked in both organizations. And as in combination she worked only since 2012, to calculate benefit proceeding from average earnings in two prior years, that is for 2011 and 2012, it is impossible. In this case decretive relied only on principle place of employment. As a result expenses of the organization in which the worker is a part-time employee have not been accepted to offsetting. However the court has not agreed with representatives of the Social Insurance Fund. Arbitrators have noted that in point 2 of article 13 of the Law No. 255-FZ there are no provisions obliging to fulfill in combination two complete calendar years preceding year in which the worker has gone to the decree. Does not contain other restrictions connected with receipt of maternity allowances by persons which work part-time the Law No. 255-FZ also. On this basis the court recognized refusal of fund in recognition of expenses illegal.
30th May
In the Resolution EXPERT of the Northwest federal district in the resolution from 4/21/2016 it is noted No. A66-3360/2015

In the Resolution EXPERT of the Northwest federal district in the resolution from 4/21/2016 it is noted No. A66-3360/2015 that lack of copies of service records of the dismissed workers is not the basis for refusal of the Social Insurance Fund in recognition of expenses on allowance payment on pregnancy and childbirth. The main point such is. The Social Insurance Fund has not accepted to offsetting expenses on allowance payment on pregnancy and childbirth. The reason — the insurer has not provided the copy of the service record of the worker, and without it there is no opportunity to check correctness of calculation of insurance years of service for purpose of benefit. The insurer has explained that at the time of check the employee did not work in this organization any more. However in Fund have declared that it is necessary to store copies of service records, including, and the dismissed workers. At the same time officials have referred to the rules of calculation and confirmation of insurance years of service approved by the order of the Ministry of Health and Social Development of the Russian Federation from 2/6/2007 No. 91. According to the main document specified to rules confirming the periods of work on the employment contract the service record is. The documents confirming the work periods included in insurance years of service are represented at the destination and allowance payments (item 20 Governed). The court has supported the organization, having specified the following. The order of the Government of the Russian Federation from 4/16/2003 No. 225 has approved Rules of maintaining and storage of service records, production of forms of the service record and providing employers with them. In point 43 of these Rules it is established: the service records which are not received by workers in case of dismissal are stored poste restante at the employer according to the requirements to their storage established by the legislation on archiving. Does not follow from this regulation that the employer is obliged to keep copies of service records after dismissal of workers. Therefore, the requirement of fund to provide copies of service records of the dismissed workers is illegal. According to arbitrators, the right to compensation (offsetting) of disputed amounts is confirmed by leaves of disability and documents on expenses on allowance payment. The data on duration of insurance years of service specified the sick leave note, the employer has determined at the time of purpose of benefits based on the service record of the employee. As the Social Insurance Fund has not declared other reasons which have not allowed it to accept expenses, the court recognized refusal in recognition of expenses illegal.
29 May
The Supreme Court of the Russian Federation in definition from 5/19/2016 No. 304-KG16-1137 has come to a conclusion

The Supreme Court of the Russian Federation in determination from 5/19/2016 No. 304-KG16-1137 has come to a conclusion that on copies of rail waybills which need to be provided to tax authorities for confirmation of a zero rate of the VAT in case of commodity export a stamp "Release is resolved" is not put down. Respectively, in case of lack of the specified mark tax specialists have no right to make the taxpayer responsible for unreasonable application of a zero rate and to additionally accrue to it a tax. In case of sales of goods, exported in a customs procedure of export, the VAT is estimated on a zero rate in the presence of the documents listed in point 1 of article 165 of the Tax Code of the Russian Federation. Copies of transport, shipping or other documents which confirm cargo exportation out of borders of the Russian Federation are a part of these documents. In case of commodity exportation through border of the Russian Federation with a state member of the Customs union on which customs control is cancelled the taxpayer shall provide copies of transport and shipping documents with marks of Russian Federation customs. In case of commodity exportation in a customs procedure of export through border of the Russian Federation with a state member of the Customs union to the third countries the customs declaration (its copy) with marks of Russian Federation customs (subitems 3 and 4 of item 1 of Art. 165 of the Tax Code of the Russian Federation) is submitted. At the same time in the Tax code it is not specified on what specifically the document the mark of customs shall be put down. Some tax authorities consider that the stamp of customs shall stand, including, on copies of rail waybills. The organization from Novosibirsk has faced a similar problem. The taxpayer has exported goods in a customs procedure of export to the Republic of Uzbekistan through the Republic of Kazakhstan which is the member of the Customs union. Goods were transported by rail. For confirmation of a zero rate of the VAT the taxpayer has submitted the documents specified in article 165 of the Tax Code of the Russian Federation. In particular, copies of rail waybills on which the customs authority has made marks about a station of origin and about date of sending goods have been shown. However the inspectorate has refused to confirm a zero rate of the VAT. The reason - on copies of the rail waybills provided by the taxpayer is not present a stamp "Release is resolved". Courts of all instances recognized refusal of inspection illegal. In the considered situation the mark "Release Is Resolved" is available on all customs declarations on which number of the corresponding rail waybill is specified. These documents confirm movement of goods. Inspection does not challenge the actual commodity export. As for a stamp "Release is resolved" on copies of rail waybills, its putting down on these documents is not provided by the customs legislation. Therefore, the taxpayer cannot be deprived of the right to application of a zero rate of the VAT due to the lack of the mark "Release Is Resolved" in duplicates of rail waybills.
23 May
In the Resolution EXPERT of the Moscow district from 3/15/2016 it is noted No. A40-156074/2014

In the Resolution EXPERT of the Moscow district from 3/15/2016 it is noted No. A40-156074/2014 that if the Social Insurance Fund has out of time compensated funds for allowance payment, then the insurer has the right to require from it interest payment. The main point such is. The organization has paid to the worker a maternity allowance then has filed in the Social Insurance Fund a petition for compensation of means. The fund has refused. Later the court recognized the decision of officials illegal, and the fund has returned means to the insurer. As it has been made with delay, the organization has decided to collect interest for using someone else's money from fund. Percent have been calculated proceeding from 1/300 refunding rates of the Central Bank for each day of delay (Art. 395 of the Civil Code of the Russian Federation, the p. 11, 14, 17 of Art. 26 of the Federal law of 24.07.09 No. 212-FZ). Judgment Courts of three instances were recognized that the insurer legally requires to pay to him interests. Judges argued as follows. The amount of insurance premiums of the Social Insurance Fund decreases by the amount of the made expenses on payment of an insurance coverage to insured persons. If it is not enough assessed insurance premiums for allowance payment to workers in full, the insurer addresses for means in fund of a social insurance. In turn the territorial authority of the insurer allocates funds within 10 calendar days from the date of provision of all necessary documents. The federal law from 12/29/2006 No. 255-FZ "About compulsory social insurance on a case of temporary disability and in connection with motherhood" does not regulate a special order of return of excessively paid fees on compulsory social insurance. But considering similarity of the legal nature of insurance premiums for mandatory pension insurance and fees on compulsory social insurance, the court has come to a conclusion that excessively paid fees return to the Social Insurance Fund as it should be, stipulated in Clause 26 Federal laws of 24.07.09 No. 212-FZ. According to this article, the amount of excessively paid fees is subject to return according to the statement of the payer of insurance premiums within one month from the date of receipt of such statement. If return of the amount of excessively paid fees is performed with violation of term, then on the amount of excessively paid fees which is not returned in due time, percent for each calendar day of violation of term of return are charged. In this case in response to the statement of the insurer for compensation of means the fund has illegally refused. Money has been transferred only after adjudication without charge of percent for untimely return. Thus, as the exceeded expenses over assessed contributions have been returned out of time, the court has obliged officials to pay interests.
16th May
In the Resolution EXPERT of West Siberian Federal District in the resolution from 3/29/2016 it is noted No. A03-15391/2015

In the Resolution EXPERT of West Siberian Federal District in the resolution from 3/29/2016 it is noted No. A03-15391/2015 that if the facts of disability and payment of hospital benefits are documented and are not challenged by Social insurance fund, then the insignificant mistakes in case of registration of leaves of disability made by the doctor are not the basis for refusal in recognition of expenses on allowance payment. The main point such is. Inspectors of the Social Insurance Fund have not accepted to offsetting expenses on allowance payment because of the mistakes made by medical institutions in case of registration of sick leave notes. So, the doctor has undersigned for one leaf of disability ink of blue color (having corrected then on black color). At the same time, record in a leaf of disability shall be executed by ink of black color or using printers (item 65 of the Order of issue of leaves of disability, утв. the order of the Ministry of Health and Social Development of the Russian Federation from 6/29/2011 No. 624n (further — the Order No. 624n)). In other bulletin in the line "Disability Reason" the incorrect two-place code is specified. Also incorrect correction in the line "Place of Employment — the Name of the Organization" has been allowed. We will remind that according to point 65 of the Order No. 624n, wrong record is accurately crossed out, and the correct record is made on the back of the form of a leaf of disability, is confirmed by the record "corrected to trust", the signature and the employer's seal. At the same time representatives of the Social Insurance Fund have referred to point 10 of the Regulations on Social insurance fund (утв. the order of the Government of the Russian Federation from 2/12/1994 No. 101; further — the Provision No. 101). In it it is told that responsibility for correctness of charge and an expenditure of means of the national social insurance are born by the head of the organization and the chief accountant. But courts of three instances recognized refusal of fund unreasonable. Arbitrators have specified: the listed shortcomings allowed in case of registration of sick leave notes do not influence data, "having essential value for acceptance to offsetting of expenses on compulsory social insurance". Besides the fund does not challenge the fact of an illness of workers and justification of issue of sick leave notes. That is violations of a special-purpose character of an expenditure of means it is not established. Also judges have explained to representatives of the Social Insurance Fund that point 10 of the Provision No. 101 obliges the Organization to watch correctness of charge and an expenditure of means of the national social insurance, but not order of issue of disability leaves by the medical organizations. Taking into account stated, arbitrators have come to a conclusion: the bases for refusal in assignment for expense recovery or in acceptance to offsetting of expenses according to controversial bulletins were not.
4th Маy
Russian Constitutional Court ruling dated 03.10.2016, № 571-O

The Russian Constitutional Court ruling dated 10.03.2016, № 571-O with reference to the Decree of 17.03.2009 № 5-P noted that per se rules of the field tax audit, suggesting the possibility of revising the size of the tax obligations of the taxpayer for a particular the tax period in comparison with the size of its previously established under the desk tax audit (and hence the removal of the budget previously submitted to the taxpayer the amount of tax rebate), can not be considered as violating the constitutional rights of taxpayers. Moreover, as the provision of judicial control, they are a mechanism for determining the actual size of the tax obligations of the taxpayer, the necessary from the standpoint of compliance with the balance of private and public interests in the field of taxes and fees.
25th April
Determination of the Supreme Court dated 12.04.2016 number 306 KG-16-2522

In the definition of the Supreme Court of the Russian Federation from 12/04/2016 number 306-KG16-2522 noted that the termination of a desk audit declarations in connection with the submission of the revised declaration is not a ground for exemption from the taxpayer's tax liability under Article 126 of the Tax Code for failure to submit the documents requested during the audit previous declaration. The point is this. During a desk audit the revised declaration number 1 tax authorities asked the company for additional documents, confirming the validity of VAT deductions. Deadline for submission - no later than 11 March. March 7 sent to the taxpayer inspection revised declaration number 2. In this case, the documents requested at check first adjusted declaration were not provided. For this reason, inspectors fined the organization on the basis of Article 126 of the Tax Code. The fine amounted to 3 400 rubles (17 documents were requested, the penalty for failure to submit one document is 200 rubles.) The taxpayer challenged the fine in court. The representative of the organization said that, since the disputed claim was exposed as part of discontinued desk audit the revised declaration number 1, then it does not need to perform. Accordingly, the taxpayer can not be held liable for failure to comply with such a requirement. However, the courts, including the Supreme Court of the Russian Federation, supported by inspection. Arbitrators noted that during the desk audit, inspectors have the right to request additional information from the taxpayer, explanations and documents confirming the correctness of calculation and timeliness of payment of taxes (Art. 88 of the Tax Code). In turn, the taxpayer is obliged to submit the following documents within 10 days from the date of receipt of the claim (p. 3 and 4 of Art. 93 of the Tax Code). Having analyzed the provisions of Articles 88 and 93 of the Tax Code, the arbitrators came to the following conclusion. Termination of a desk audit of the original declaration in connection with the "utochnenki" is not a ground for exemption from the taxpayer's tax liability under Article 126 of the Tax Code. Thus, the taxpayer was required to submit the documents requested within the specified declaration verification number 1. Submission of an updated Declaration IFTS number 2, including before the deadline allotted for submission of the requested documents, does not relieve him from this obligation.
5 April
Resolution of the Plenum of the Russian Armed Forces from 24.03.2016, the number 7

Resolution of the Plenum of the Russian Armed Forces from 24.03.2016, № 7, in order to ensure the unity of the practice of the courts of the provisions of the Civil Code on liability for breach of obligations, brought clarification. For example:
  • RF Civil Code provisions in the amended Law № 42-FZ amended, for example, Article 317.1 of the Civil Code shall not apply to rights and obligations arising from contracts concluded before the date of its entry into force (until 1 June 2015). In disputes of these contracts should be guided by the previously applied the editorship of the Civil Code with regard to the established practice of its application (Sec. 2, Art. 4, second paragraph n. 4, Art. 421, para. 2, Art. 422 of the Civil Code). However, when deciding on charging interest for failure monetary obligation arising under a prisoner until June 1, 2015 agreement, in respect of periods of delay that occurred on June 1, 2015, the rate of interest is determined in accordance with paragraph 1 of Article 395 of the Civil Code as amended by Law N 42-FZ (n. 83);
  • the amount of interest to be collected according to the rules of Article 395 of the Civil Code, is determined on the day the court decision on the basis of the periods that occurred before the specified date. Interest on borrowed funds at the request of the plaintiff charged on the day of payment of these funds to the lender. Simultaneously with the establishment of the amount of interest to be recovered, the court in the presence of the plaintiff's claim in the operative part of the decision indicates the collection of interest prior to the actual performance of the obligation (para. 3, Art. 395 of the Civil Code). In this case the date of actual execution of commitments, in particular the payment of the debt to the creditor, is included in the interest calculation period. Calculation of interest accrued after the decision, made in the course of its execution by the bailiff, and in cases established by law - in other bodies and organizations, including the Treasury authorities, banks and other credit organizations, officials and citizens (p. 1, Art. 7, Art. 8, pp. 16, para. 1, Art. 64 and p. 2, Art. 70 of the Law on Enforcement Proceedings). The rate of interest is determined by the average bank interest rates on deposits of individuals that occurred during the periods after the decision (para. 1, Art. 395 of the Civil Code) (p. 48).
4 April
AS Resolution of the North-West District of 02/18/2016 number A26-1774/2015

The Regulation of FAS Northwestern District from 02.18.2016 number A26-1774 / 2015 noted that even if the notice of voluntary refusal of the application of the simplified tax system and transition to the Ba mode mode is directed to the inspection skip the deadline, the taxpayer is entitled to apply the general regime of taxation. The point is this. The organization has notified the tax authority on the transition to the simplified tax system from January 1, 2012, but later decided not to use the "uproschenku" and continued to work on a common tax regime. In this case a notice of refusal to apply the simplified tax system and the transition to the general regime came to an inspection, only 10 July 2012, although by law this document to be lodged no later than 15 January 2012. At the end of the second quarter of 2012, the organization handed over a declaration of VAT, stating the amount of tax to be recovered. Inspectors said that the use of Ba and wrongfully denied the deduction. Justification is. The taxpayer, who has moved on USN, should remain in this special regimes until the end of the tax period, ie until 31 December. Voluntary withdrawal from the simplified tax system is possible in the case of an appropriate notification in accordance with Article 346.13 of the Tax Code the term - until January 15 of the year in which there was a change of the taxation system. Skipping this term means that the taxpayer must continue to use the simplified tax system before the end of the year. The trial court agreed with the tax authorities. However, the courts of appeal and cassation courts have recognized that the taxpayer appropriateness of Ba. The transition to the simplified tax system or return to a different tax regime is voluntary (Art. 346.11 of the Tax Code). The voluntary transition to the simplified tax system presupposes the existence of the organization right before the application of "simplified taxation" to change his mind and stay on the common tax regime. Due to the fact that the rejection of the use of the simplified tax system is notifying, untimely submission of the notification is not a reason to recognize the illegal use of a common system of taxation. The fact that the transition to the simplified tax system must be supported by tax accounting in accordance with the requirements of Section 346.24 of the Tax Code, as well as the payment of taxes under the simplified tax system. Thus, defected to the USN are considered organizations that are not only sent to the tax authority notified of the transition to the USN, but actually applied the tax regime. In this case, the organization shall pay the tax and submit reports under the general tax regime, rather than the simplified tax system. Thus, the taxpayer and the appropriateness of Ba said the VAT deduction.
28 Marсh
Money given accountability for the acquisition of material assets are not subject to personal income tax only

Russia's Supreme Court in the determination of the number 302, 3.9.2016 16-450 KG came to the conclusion that the money given to accountability for the acquisition of material assets are not subject to personal income tax only if the supporting documents (such as receipts) contain all the requisites established by the legislation, including the specific name of the goods. If some details are not filled or contains general wording "stationery", "household chemicals", "Children's Christmas gifts," the inspectors can recognize cash taxable income of the employee. The point is this. Employees of the organization received a cash account for household needs. In support costs were submitted expense report with the documents confirming the payment of goods and materials. However, the inspection stated that receipts drawn up in violation of the current legislation. So, they do not indicate the name of the economic entity, prepared the document (as well as name, job title, name of the persons who signed the checks). In addition, the number of checks is no specific product names. Instead, use general language, "business expenses", "stationery", "Products", "household chemicals", "Materials", "spending", "children's Christmas gifts." According to the tax authorities, the absence of properly executed original documents indicates that on payment of the cost of inventories is not confirmed. Accordingly, the petty cash should be included in the taxable income of employees. On this basis, inspectors assessed that the personal income tax in the amount of 430 thousand. Rubles. The organization appealed to the court. In its defense, the taxpayer claimed that he had taken from the employees expense reports, thus confirming that the money spent on household needs. This means that the taxable income of the personal income tax from the employee does not arise. As proof of posting and expenditure adopted under the cash report for production purposes in the company referred to the statements of account 10. But the courts of all instances recognized additional taxation justified. First of all, the arbitrators referred to the decision of the Presidium from 03.02.09 №11714 / 08. It states: money given accountability for the acquisition of material assets are not subject to personal income tax only in the case if the workers have documented costs incurred, and commodities and materials adopted by the organization on the account. According to Article 9 of the Federal Law of 06.12.11 number 402-FZ of accounting, every fact of economic life is subject to registration of primary accounting documents. The form such an instrument should contain mandatory requisites established by paragraph 2 of Article 9 of the Law № 402-FZ:
  • name of the document;
  • the date of the document;
  • name of the organization on whose behalf the document drawn up;
  • the content of the economic operation;
  • gauges economic operation in physical and monetary terms;
  • the name of the persons responsible for fulfillment of economic operation and correctness of its registration;
  • personal signatures of these persons.
In this case, in addition to the already above-mentioned drawbacks in commercial checks were missing their date of drafting and signature of seller; not filled in the column "amount", "price"; instead of the names of specific products simply pointed out that the money issued for the execution of works or services (for example, "ad", "construction contract", "improvement area"). All this indicates the absence of primary documents confirming the purchase of inventory. With regard to the posting of goods on account of 10, that fact, in itself, does not indicate the expenditure of funds is accountable for production needs, said the court. Consequently, the disputed imprest rightly regarded as the inspection of personal income
23 Marсh
On the reimbursement of expenses for rental housing nonresident workers

In the definition of the Supreme Court dated 26.02.2016 number 310-KG15-20212 noted that the payment of rental costs to nonresident employees paid by the employer on the basis of a local act, does not apply to incentive payments and is not dependent on the skills of workers. In this regard, the payments are not charged premiums. The point is this. On the basis of a local act (order) the organization offset the cost of hiring housing workers who have moved from Tambov to St Petersburg. Employees paid a sum of money in a fixed amount - 20 thousand rubles a month.. According to employees of the FIU management to payment data needed to charge premiums. His position controllers argued as follows: workers' compensation costs for rental housing at the new place of residence due to labor relations, it is systematic and stimulating character. Contributions are exempt only those payments that are directly listed in Article 9 of the Federal Law of 24.07.2009 number 212-FZ. Controversial costs in this norm is not named. Consequently, the amount of compensation for rental housing should be subject to insurance premiums in accordance with Article 7 of the Law № 212-FZ. The courts of all instances, including the Supreme Court, did not agree with the position of the Fund. Article 9 of the Law № 212-FZ, a list of payments that are not subject to taxation of insurance premiums. To those, in particular, all kinds of payments established by the legislation related, inter alia, with the move to work in another locality. By virtue of Article 165 of the Labour Code, employees are given guarantees and compensation when moving to work in another locality. Thus, the disputed compensation payments are staff costs of hiring premises when moving to another country in order to work, the obligation to reimburse which lies on the employer. These expenses are established local act of the organization and are of social nature. Despite the fact that the compensation made in connection with an employment relationship, such payments do not have signs of wages in the sense of Article 129 of the Labour Code, as is not a reward for work, do not apply to incentive payments, do not depend on the employee's qualifications. Consequently, workers compensation costs amount to the monthly rent are not subject to insurance contributions.
5 Marсh
The Regulation of FAS Far Eastern District on 27.1.2016 number F03-6295 / 2015

The Regulation of FAS Far Eastern District on 27.1.2016 number F03-6295 / 2015 noted that if the time allotted for the collection of arrears of insurance contributions, has expired, the inspectors from the Pension Fund units do not have the right to charge interest on the arrears. The point is this. The Organization had overdue arrears of insurance contributions for 2009 in the amount of 1185 rubles. Despite the fact that the debt collection period has expired, on that amount for the period from March 2012 to February 2015 inspectors from the RPF interest charges, which were recovered on an uncontested basis. The inspectors decided that since the organization of an outstanding balance, this is the basis for calculating fines. The courts of three instances supported by the organization, pointing out the following. According to Parts 1 and 2 of Article 18 of the Federal Law of 24.07.2009 number 212-FZ, the payers of insurance premiums required to timely and fully pay insurance premiums. In the case of non-payment by the due date the obligation to pay them executed forcibly by taking possession of funds on the payer's account (Art. 19 of the Law № 212-FZ). The obligation to pay insurance premiums provided by default interest (Art. 25 of the Law № 212-FZ). In this case, the Court found that the Fund did not take any measures to forcibly collect the arrears. At the date of the proceedings the possibility of recovery of the said debt has been lost. Therefore, the calculation and collection of penalties on overdue arrears improperly.
3 Marсh
Resolution FAS Central District of 10/2/2016 number F10-47 / 2016

The Regulation of FAS Central District of 2.10.2016 number F10-47 / 2016 noted that even if the local organization of the act provides that when a one-day business trip an employee is paid per diem, those payments because of its orientation can be recognized as compensation of other costs associated with the service trip. But such amounts organization is entitled to take into account in tax income spending. The point is this. The employer directed the employees to travel for one day, out of which they were able to return home every day. This order of the organization was envisaged that the workers assigned on a day trip, are paid "per diem" in the amount of 700 rubles per day. In the IRS said that the allowance shall be paid at the one-day trips. This is stated in Article 11 of the Regulation on the direction of employees on business trips (approved by the RF Government Decree of 13.10.2008 number 749,. Hereinafter - Regulations). Thus, the cost of daily subsistence allowance at one-day trips should not be taken into account for tax purposes, even if the payment of the amount provided for a local act. The court's decision However, the court decided that the organization rightly took into account the disputed costs. Justification is. Article 24 of the Regulations stipulates that the posted worker may be reimbursed other expenses associated with the trip in the manner specified by the collective agreement or local normative act of the organization. Accordingly, the amount of reimbursement at a one-day business trip employee can be taken into account in the taxation of profit as other expenses related to production and sales (cop. 49 para. 1, Art. 264 of the Tax Code). In this situation, despite the fact that the money in the local act are named as "per diem", in fact they are a compensation in the amount established by the other employee travel expenses. Thus, such amounts may be deductible.
1 March
Resolution of 19.1.2016 number 2-P

Переводчик Russian Constitutional Court in a judgment of 1.19.2016 number 2-P has recognized that existing legal provisions on insurance premiums, do not allow the funds and the courts to mitigate the liability of the insured, do not comply with the Constitution. Prior to January 1, 2015, paragraph 6 of Article 39 of the Federal Law of 24.07.09 number 212-FZ read: during the review inspection materials the head (deputy head) of the fund unit shall, in particular, to identify the circumstances mitigating or aggravating the responsibility for the offense. These circumstances were mentioned in the article 44 of the Law № 212-FZ. The new wording of paragraph 6 of Article 39 of the Law № № 212-FZ, which entered into force on 1 January 2015, it stipulated that the monitoring body should reveal only the circumstances precluding guilt of the person in committing the offense (they are listed in Part 1 of Article 43Zakona number 212 FZ). And Article 44 of the Law № 212-FZ has lost power (cop. "And" p. 22 and p. 24, Art. 5 of the Federal Law of 28.06.14 № 188-FZ). The Constitutional Court considered the appeal of arbitration courts of Moscow and the Penza region, which, when disputes have failed to reduce the fine. In one case, the insurer was fined for failure in the calculation of the period in the form of RSV-1. In its defense, the organization referred to a number of mitigating circumstances (a prolonged restructuring, demolition of the old building of the educational institution, in the absence of state accountant, prosecution for the offense for the first time, and so on.). In another case, the medical institution was held liable for late payments. Insured requested to reduce the fine because the offense is committed for the first time. In addition, fees charged by the audit, have been paid immediately. However, in both cases, the courts have failed to take into account mitigating circumstances due to the above-mentioned amendments to the legislation. The Constitutional Court of the Russian Federation recognized that the amendments according to which the law on the insurance premiums are excluded provisions for mitigating circumstances, have led to a lack of opportunities to reduce the amount of the fine. This "does not allow to individualize the punishment, take into account the nature and degree of the offender guilty, other relevant circumstances, and thus leads to a violation of the rights of payers of insurance premiums provided by the constitutional principles of legal liability." On this basis, the High Court declared the impugned provisions of the Law № 188-FZ to the Constitution. Federal legislator entrusted to make the legislation on insurance premiums "changes, allowing to individualize the punishment, take into account the nature and degree of guilt, and other relevant circumstances." Also in the court order stated: As long as the changes are made to legislation on insurance premiums is used in keeping with the Constitutional Court.
26 February
Decree of 27/01/2016 number F06-4898 / 2015 AS Volga District

In the judgment of 27.1.2016 number F06-4898 / 2015 AS Volga region came to the conclusion that the amount of compensation on compulsory medical examinations costs that workers passed before employment, are not subject to insurance contributions, even if the compensation paid after the conclusion of employment contracts. The point is this. Before taking a job at the post-sales consultants applicants passed the preliminary examinations. After the physical persons with an employment contract, the employer paid him compensation for the cost of check-ups. The Pension Fund said that the profession of Sales is not included in the list of professions subject to compulsory medical examination, and is not associated with harmful and dangerous production factors. So, the employer is not obliged to reimburse the costs of medical examination. In addition, the cost of the medical examination of compensation paid after the reception of applicants for a job. That is, payments made in the framework of labor relations, and should be subject to fees on the basis of Article 7 of the Federal Law of 24.07.09 № 212-FZ (hereinafter - the Law № 212-FZ). The court upheld the organization, pointing out the following. Article 213 of the Labour Code establishes the obligation of employers to carry out at its own expense the preliminary (at employment) and periodic (for work) medical examinations of workers engaged in work with harmful and (or) dangerous working conditions, as well as work related to the the movement of transport. If an employee is paid a medical examination at the expense of own funds, the employer shall pay compensation. In this case, the work of shop assistants was associated with traffic (traveling work on the car). Since the passage of medical examination in such a situation it is necessary under the law, the compensation cost of employee medical examination is not subject to insurance contributions on the basis of subparagraph "and" 2stati paragraph 9 of the Law № 212-FZ. In addition, physical examination was carried out at a time when the employment relationship between the employer and by individuals lacking. The subsequent conclusion of labor contracts and compensation during the existence of an employment relationship have no legal significance, since the events with which the compensation occurred in the absence of labor relations. In view of the above, the Court concludes that the compensation of the costs of compulsory preliminary medical examination is not subject to insurance contributions.
25 February
Russian Constitutional Court of 11.19.2015, № 2731-O

The Russian Ruling of the Constitutional Court of 11.19.2015, № 2731-O pointed out that para. 1, Art. 27 of the Tax Code, defining the concept of the legal representatives of the organization, the taxpayer, by itself does not regulate the number of persons who may be subject to one or other liability for breach of duty to pay taxes. Therefore, the use of a natural person prosecuted under Art. 199 of the Criminal Code (the subjects of the crime can be attributed head of the organization, the taxpayer, the chief accountant (accountant in the absence of the state chief accountant), who are responsible for the signing of the reporting documentation submitted to the tax authorities, to ensure the full and timely payment of taxes and fees ) liability in the form of compensation for the harm (p. 1, Art. 1068 of the Civil Code), does not violate the constitutional rights of the individual. By virtue of Art. 54 Code of Criminal Procedure as a civil defendant may be held natural or legal person who, in accordance with the Civil Code of the Russian Federation is responsible for the harm caused by the crime; about bringing the person or entity as a civil defendant the inquiry officer, the investigator or the judge makes a decision, and the court - a ruling. According to Art. 1068 of the Civil Code a legal entity or a citizen shall compensate the damage caused by its employee in the performance of labor (service, job) duties, and in respect to the rules provided by its head 59 of the Civil Code, "Obligations owing to injury", employees are recognized citizens performing work under an employment agreement (contract), citizens performing work under civil law contracts, provided that they acted or should have acted on the instructions of the respective legal person or citizen and under the control of safe operations.
24 February
AS Resolution of the North-West District in the judgment of 14.12.2015 number F07-2649 / 2015

The Regulation of FAS Northwest District in the judgment of 12.14.2015 number F07-2649 / 2015 noted that if an organization pays an individual fee for the guarantee on its credit agreement, then this fee it must pay the insurance premiums. The point is this. The organization has concluded with the bank credit agreements. As the guarantor acted as natural persons, which is not an employee of the company. For services to the citizen co-signer was paid 450 thousand rubles. Inspectors from the RPF stated that the amount of remuneration needed to charge premiums. The base - natural persons were paid a fee for "services". Consequently, this amount is subject to taxation of insurance premiums on the basis of Article 7 of the Federal Law of 24.07.09 № 212-FZ (hereinafter - the Law № 212-FZ). Since the organization is not accrued premiums for surety fee, it was held liable on the basis of paragraph 1 of Article 47 of the Law № 212-FZ. The courts have recognized the legitimate decision of the Fund. Referees were reminded that the object of taxation of insurance premiums and the basis for calculating contributions to the organizations making payments and other compensation to individuals are recognized, including payments under civil law contracts, the subject of which is the performance of work, rendering of services. This follows from the provisions of paragraph 1 of Article 7 and paragraph 1 of Article 8 of the Law № 212-FZ. In this situation, the citizen has the organization a favor by taking on the obligation to respond to the bank for the performance of its obligations under the loan agreements. Organization and natural persons have issued a guarantee agreement. As a result, between the bank and the organization were signed loan agreements with the surety. Thus, the disputed funds paid to an individual in connection with the provision of guarantor services to them in a civil law contract. And these payments are subject to insurance contributions.
15 February
AS Resolution of the Ural district from 11.27.2015 number A71-2097 / 2015

The Regulation of FAS Ural district from 11/27/2015 number A71-2097 / 2015 noted that if in the reference 2-PIT, presented to the bank for the loan, and in the help of the same persons, donated by the tax agent in the inspection, specify different salary it does not indicate that the employer submitted to the IRS false information about the employee's income. And accordingly, should not be whether it is possible on the basis of "banking" Help assessed additional premiums. The point is this. Stating that the organization pays the wages "in envelopes", FIU inspectors assessed that her insurance premiums, and brought to justice in accordance with paragraph 1 of Article 46Federalnogo Law of 24.07.09 number 212-FZ. The conclusion that there is double counting salaries FIU officials made on the basis of information received from the tax authorities. As the inspection certificates in 2-PIT represented workers for the loan contains a higher salary than the references, put into office. However, the courts of three instances of fines and charge additional fees canceled by entering the following. Firstly, the reclamation of the bank information on the income of natural persons is a violation of personal data protection legislation. Secondly, all the facts that prove the guilt of the insured in violation of the commission, shall be documented. Meanwhile, the amount of income referred to in the certificate on Form 2-PIT for the loan, it does not prove that the insured actually paid such income to the employee. It is possible that it was false information provided by the bank, not to the inspection. After all, the decision to grant a loan depends on the size of the borrower's income, so the insurer could inflate the amount of the employee's request. Because the FIU management failed to provide objective evidence showing an artificially low wages, additional charging fees, penalties and fines is unfounded, the Court pointed out.
8 February
Determination of 02.01.2016 number 306-KG15-18624

Russia's Supreme Court in the determination of the number 306, 1.2.2016 KG15-18624 concluded that an employer who is either reimbursed employee expenses for the child in kindergarten or directly listed parent fee in preschool, is not obliged to charge for such payments insurance contributions. The point is this. The organization partially reimburse employees for the maintenance costs of children in kindergarten. The collective agreement was confirmed that parents with three or more minor children, as well as single mothers be paid compensation in the following amounts: 80 percent of the amount of parental fee for the first child; 50 per cent - for the second child; 30 percent - for the third and subsequent children in the family. This compensation shall be transferred to employees based applications on their bank cards. According to RPF officials, these amounts have to be included in the basis for calculating premiums. Justification - payment for the maintenance of employees' children in preschool are not covered by the concept of compensation established by the legislation of the Russian Federation and named in Article 9 of the Federal Law of 24.07.2009 number 212-FZ. Courts of first instance and appeal courts have supported officials. However, the appeal court and the Supreme Court decided in favor of the organization. As indicated referees controversial compensation does not depend on the labor achievements of the employee and is not a reward for work, in connection with what is social payments. Given that social payments based on a collective agreement are not employees are paid, such amounts are not subject to taxation of insurance premiums.
25 January
Decision of 24.11.2015 number AKPI15-1111

Russia's Supreme Court in a decision of 11/24/2015 number AKPI15-1111 concluded that the inventory of property in the course of a tax audit at the Ministry of Finance and regulated by the order of the RF Ministry of 10.03.1999 number 20H / GB-3-04 / 39. According to this document, the taxpayer is obliged to provide labor inspectors for weighing and moving loads, weights, gauges and measuring container (Sec. 2.7 Provisions). The point is this. The organization appealed to the Supreme Court a statement to recognize invalid the order to the Ministry of Finance and the Tax Ministry on 10.03.1999 number 20H / GB-3-04 / 39. According to the applicant, approved by order of the position leads to additional material costs to ensure the conditions for the inventory. Namely - on compensation of employees, weighing assets, the acquisition of measuring instruments and so on. Meanwhile, in the Tax Code does not set a taxpayer obligation to provide the tax authority or labor force with the necessary equipment to carry out the inventory. Since the order of the Ministry of Finance and the Federal Tax Service for the taxpayer introduces an additional duty, not prescribed by the Tax Code, the document was adopted in violation of the law, said the organization. The Supreme Court of the applicant's position did not agree, stating the following. In subparagraph 13 of paragraph 1 of Article 89 of the Tax Code states that, if necessary, the inspectors carrying out site inspection can be carried out including an inventory of the property. Mandatory inventory of property enshrined in Article 11 of the Federal Law of 06.12.11 number 402-FZ "On Accounting", paragraph 21 of the Guidelines for accounting of inventories (approved. Ministry of Finance Order of 28.12.2001 number 119n). Thus, fixing in the contested provisions of the requirement that the taxpayer must create the conditions to ensure complete and accurate verification of the actual availability of property, the Ministry of Finance and Ministry of Taxation has not gone beyond the powers granted to, and do not set the requirements, not provided by the legislation on taxes and fees. the taxpayer's argument that paragraph 2.7 of the Regulation leads to additional material costs, as it requires to acquire additional property, hire labor, the court also rejected. Justification is. Inventory legislator provided in organizations, regardless of their type of activity. Thus, the inventory of premises and areas used by the taxpayer for the extraction of income or related to the content of the objects of taxation, can not be carried out without the manpower to pereveshivaniya and moving loads, weights, measuring and control devices. Consequently, the tax authority's request for these funds is justified. The court noted that the taxpayer is obliged to provide the inspectors during the inventory is only one labor and the equipment which he has. In view of the above, the Court decided that the order the Ministry of Finance and the Tax Ministry on 10.03.1999 number 20H / GB-3-04 / 39 does not conflict with federal law and does not violate the rights of taxpayers.
19 september
Resolution of the Federal District of the Moscow 02.06.2014 city №A40-134321/2013

The Regulation of FAS Moscow District on 02.06.2014 (case number A40-134321 / 2013) with reference to paragraph. 6 tablespoons. 271 and p. 8 Art. 272NK Russian Federation noted that when using the accrual date of recognition of expenses and, therefore, revenue in the form of interest does not depend on the duration of the payment of interest as defined by the terms of contracts and the actual payment of the accrued interest to the lender. Taxpayer's right to inclusion in non-operating expenses and, therefore, non-operating income, the amounts accrued under loan interest is not related to the actual payment of funds to the lender. Therefore, the amount of accrued interest are taken into account for tax purposes in each accounting period, and even if the term of repayment of the loan and transfer of interest for the use of funds is necessary for the next tax period (year).
17 september
Resolution of the Federal District of the Moscow 28.05.2014 city №A40-114401/12

The Regulation of FAS Moscow District on 28.5.2014 (case number A40-114401 / 12) noted that, for accounting purposes because of its direct claim of the special provisions. 6.1 20 PBU useful life of fixed assets, which are the subject of the contract lease is determined based on the term of the lease (leasing). Therefore, regardless of the subject, which is reflected on the balance sheet property being leased, such entity shall be entitled to invoke the provisions of para. 20 AR 1.6, setting the useful life of the property equal to the term of the contract. The Decree of the Government of the Russian Federation of 01.01.2002 № 1, which was approved by the classifier, pointed out that the legal act is adopted in accordance with Art. 258 of the Tax Code, ie Classifier is designed primarily for the purposes of the application of tax legislation. This means that the set Classifier deadlines are not binding for the determination of the useful lives of fixed assets for accounting purposes.
15 september
Resolution of the Federal District of the Moscow 13.05.2014 city №A40-121701/12-107-602

The Regulation of FAS Moscow District on 13.05.2014 (case number A40-121701 / 12-107-602) with reference to the claims. 25 para. 3 tbsp. 149 claims 1 and n. 2 tbsp. 170 of the Tax Code, noted that if the value of the transferred goods does not exceed 100 rubles., When sending the product for promotional purposes the taxpayer does not charge VAT, but the VAT charged counterparty for promotional items to be included in the cost of the promotional products and is not subject to deductible .
10 september
Resolution of the Federal Western Siberian region of 04.07.2014 № A27-15729/2013

FAS West Siberian District in its Resolution of 04.07.2014 № A27-15729 / 2013 came to the conclusion that if the penalty is paid to natural persons, actually compensates its loss, the additional income from physical persons does not arise. Accordingly, to keep personal income tax on the amount of the penalty is not necessary. The essence of the case is as follows. For the purchase of non-residential premises individuals received credit funds in the bank at 8.5% per annum and have listed their organization seller. In the future, the seller had breached its obligations under the contract. In this regard, he had to return the advance payment and the buyers to pay a penalty of 8.5% paid on the loan. Representatives of the Tax Inspectorate stated that the amount of compensation cost natural persons are not included in the list of compensation established by paragraph 3 of Article 217 of the Tax Code. Therefore, such payments are subject to personal income tax. Since this was not done, the tax brought the company to liability for breach of duty of a tax agent (Art. 123 of the Tax Code). However, the Court of Arbitration with the position of the tax authorities did not agree. The arbitrators stated: you can not qualify for any amount of money received as income, excluding contained therein economic benefits. In this situation, due to the termination of the contract on the fault of the seller the buyers loss occurs as the amounts of interest paid by the bank for the loan. Thus, individuals receive a penalty actually compensated for loss and no additional income for them is not created. By itself, a loan could also create economic benefits for individuals, as they did not use the money, and immediately transferred to the seller as a deposit. In view of the Court concluded that because the disputed funds do not create for individuals any economic benefit, they do not fall under the concept of income referred to in Article 41 of the Tax Code, and are not subject to personal income tax.
5 september
Resolution of the Federal Central District of 11.07.2014, the №A09-9251 / 2013

FAS Central District in its Resolution of 11.07.2014, № A09-9251 / 2013 came to the conclusion that the tax code does not set the period of decreasing the amount of UTII on paid premiums. Therefore entrepreneurship "vmenenschik" right to reduce the amount of tax on the premiums paid during the same period in the next quarter. The essence of the case is as follows. Individual entrepreneur of the Bryansk region (applicable UTII mode) in the preparation of the declaration UTII for the I quarter of 2013 reduced the amount of tax on the sum of the fixed payment for the same period. However, the tax inspectors stated that the tax reduced invalid, since the premiums were actually listed in the second quarter (payment was listed on 24 April and the tax paid by April 25). As a result, the taxpayer was fined on the basis of paragraph 1 of Article 122 of the Tax Code for failure to pay the single tax. Individual entrepreneur went to court and won in three instances. Judge reasoned as follows. Paragraph 2.1 of Article 346.32 of the Tax Code does not indicate that the individual entrepreneur who does not have employees, reduces the amount of a single tax paid in this particular tax period premiums in a fixed size. And in accordance with paragraph 7 of Article 3 of the Tax Code, all of doubt, contradictions and ambiguities in the legislation on taxes and duties shall be interpreted in favor of the taxpayer. Since the Tax Code does not establish a period of decreasing the amount of contributions paid by UTII "for himself," An individual entrepreneur legitimate when calculating the tax for the I quarter allowed for a fixed payment listed in the II quarter.
3 september
Resolution of the Federal Western Siberian region of 06.08.2014, the №A46-12467/2013

FAS West Siberian District in its Resolution of 06.08.2014, № A46-12467 / 2013 issued an opinion that the presence of the person responsible for checking the counterparty due diligence not prove anything. The essence of the case is as follows. Tax Inspectorate fined the company pursuant to paragraph 1 of Article 122 of the Tax Code of the Russian Federation for the partial payment of VAT and assessed additional expense of 6.5 million. Rubles VAT. The basis for this decision was the conclusion of officials of unjustified tax benefit of the organization. This was evidenced by the following facts. Firstly, contractors deny signing invoices. Secondly, part of the construction contract and the invoices were signed prior to the registration and tax registration organizations counterparties. The company appealed to the court, stating in his defense following. When formal compliance invoices requirements of Article 169 of the Tax Code signing them by unidentified persons in itself can not serve as absolute proof of fictitious transactions and their focus on illegal minimize the tax burden. In addition, the taxpayer submitted an order for the organization to appoint the person responsible for the verification of credentials of contractors. In the organization believed that this document proves due diligence when entering into contracts with counterparties controversial. The trial court upheld the taxpayer. However, appeal and cassation decision of the lower court was canceled. Judges are reminded that the basis for the deduction of VAT is the totality of the circumstances: the purchase of goods (works, services) for use in transactions subject to VAT, the reflection of them in the accounting process, the buyer and the presence of a properly issued invoice. Of the provisions of paragraph 2 of Article 169 of the Tax Code should explicitly prohibit the adoption of deductible VAT on invoices made ​​out with the offense. Since the disputed invoices contained false information, they can not be the basis for the amount of tax deductible. The court also noted that in itself is an order of determining the person responsible for the verification of credentials of contractors does not show due diligence when selecting contractors. Instructing employees engaged in subcontract work at the facilities, does not confirm the relationship between these workers with questionable contractors. Based on the above arguments, the court found the refusal to deduct VAT and additional taxation lawful.
30 august
Resolution of the Federal District of the Moscow 25.04.2014 city №A40-52242/13

Resolution of the Federal District of the Moscow 25.04.2014 (case number A40-52242 / 13) with reference to the Constitutional Court of the Russian Federation of 04.06.2007, № 320-OP recognized as lawful expensed, deductible expenses made ​​by the taxpayer work, which were not accepted by the customer in connection with the improper quality of their performance, despite the fact that on controversial operations revenue is not received by the taxpayer. Since the controversial work was actually carried out, the cost and size are confirmed by relevant documents, termination of the contract by the customer is not a ground for refusal registered the disputed expenses for tax purposes. Controversial costs are recognized in the tax laws as an expense eligible item. 252 of the Tax Code, the validity of which account when calculating the tax base for income tax claims concretized norm. 47 para. 1 tbsp. 264 of the Tax Code.
27 august
Resolution of the Federal District of the Moscow 21.04.2014 city A41-34916/13

The Regulation of FAS Moscow District on 21.04.2014 (case number A41-34916 / 13) noted that a literal interpretation of the claims. 1 pt. 9 Art. 15 of the Federal Law of 24.07.2009 № 212-FZ "On insurance premiums ..." implies that payers of insurance premiums required to provide estimates of accrued and paid insurance contributions for each period, regardless of whether payments that are subject to taxation of insurance premiums. In accordance with Clause. 1 tbsp. 46 of the Act on insurance premiums, failure to provide the payer of insurance premiums by the due date calculation of accrued and paid insurance premiums in control authority for the payment of insurance premiums in the place of registration shall entail a fine in the amount of 5 percent of the amount of insurance premiums, accrued expense for the last three months of the reporting (settlement) period for each full or partial month from the date fixed for submission, but not more than 30 percent of this amount and not less than 1 000.
25 august
Resolution of the Plenum of the Supreme Arbitration Court of 16.05.2014 N28

The Resolution of the Russian Federation of 16.05.2014 N 28 "On some questions connected with the defense of major transactions and related party transactions" explained particularly challenging major transactions and related party transactions. In particular, the Plenum of the Supreme Arbitration Court pointed out that the provisions of the Federal Law "On Limited Liability Companies" and "On Joint Stock Companies" are special in relation to Article 173.1 and paragraph 3 of Article 182 of the Civil Code. In connection with this transaction, concluded without the necessary consent of the legal entity, as well as transactions made by the representative of the legal person against a person or against another person, both of which he is not subject to the rules on major transactions and related party transactions, may be challenged by the rules of Article 173.1 and paragraph 3 of Article 182 of the Civil Code. In the event that a major transaction or related party transaction was approved by the general meeting of shareholders, it may be declared invalid in accordance with paragraph 2 of Article 174 of the Civil Code. Plenum of the Supreme Arbitration Court explained that the statute of limitations for claims to invalidate the transaction made in violation of the procedures for its approval, calculated from the date when the claimant knew or should have known that such a transaction require the approval in the manner provided by law or the articles of association, at least she has been made before. It is assumed that a party should have known about the transaction in violation of the procedures for its approval no later than the date of the Annual General Meeting of Shareholders for the year in which the transaction took place, unless the participants of the meeting provides materials could conclude such transaction. As pointed out by the Plenum of the Supreme Arbitration Court, the explanations contained in the Regulation shall apply also when considering court cases challenging the major transactions and related party transactions of state and municipal unitary enterprises, cooperatives, autonomous institutions and other non-profit organizations, unless otherwise provided by law or follows from the nature of relationships.
20 august
Regulation of FAS Moscow District on 04.03.2014 city №A40-17207/13

В Постановлении ФАС Московского округа от 03.04.2014 г. (дело № А40-17207/13) отмечено, что анализ во взаимосвязи положений НК РФ и ГК РФ позволяет сделать вывод, что с момента ликвидации кредитора у налогоплательщика прекращается обязательство по оплате, в связи с чем факт ликвидации относится к иным основаниям, по которым спорная сумма кредиторской задолженности подлежит включению в состав внереализационных доходов того налогового периода, когда кредитор был исключен из ЕГРЮЛ. Следовательно, периодом, в котором следует отражать кредиторскую задолженность для целей бухгалтерского и налогового учета, признается тот период, в котором наступает событие, связанное с моментом прекращения обязательств. При этом именно на налогоплательщика возлагается обязанность своевременно производить инвентаризацию обязательств и относить подлежащие списанию суммы кредиторской задолженности в состав внереализационных доходов в определенный налоговый (отчетный) период.
15 august
Resolution of the Federal District of Russia from the Urals city of №F09-2974 06.17.2014/14

FAS Ural District of the Russian Federation in its Resolution of 06.17.2014, № F09-2974 / 14 came to the conclusion that the additional cost to the lump-sum allowance for childbirth and the monthly allowance for child care provided by the collective bargaining agreement, in the basis for calculation of insurance premiums not included. The essence of the case is as follows. On the basis of the collective agreement the company at his own expense paid women workers an additional lump sum for the birth of a child (at a rate of 2 times the minimum wage), as well as a monthly allowance for child care up to one and a half to three years ($ 1 minimum wages). Representatives of the Russian Federation Pension Fund decided that the payments are made within the framework of labor relations, and therefore subject to insurance contributions on the basis of Article 7 of the Federal Law of 24.07.09 № 212-FZ. However, the court with the position of the representatives of the Russian Federation Pension Fund did not agree. Explanation is that the mere fact of existence of an employment relationship between the employer and its employees are not a sign that all payments that accrue to employees are paid for their work. In contrast to the employment contract, which, in accordance with Articles 15 and 16 of the LC RF regulates precisely labor relations, collective agreement in accordance with Article 40 of the LC RF regulates social and labor relations. Welfare payments, based on the collective agreement that are not challenging, independent of workers' skills, complexity, quality, quantity, conditions for carrying out the work itself, not the compensation of employees (remuneration for work), including because it does not provide labor contracts. Consequently, since the additional cost to the benefits provided under the collective bargaining agreement, are not wages, the grounds for assessment of these payments is not, the court ruled.
13 august
Determination of the Russian Federation of 09.07.2014, the VAS-8467/14

The Supreme Arbitration Court of the Russian Federation of 09.07.2014 № VAS-8467/14 to refuse to transfer the case to the Bureau concluded that the labor or collective bargaining agreement can be assigned any per diem employees whose work is carried out in a way or a traveling nature. This compensation is not subject to insurance contributions in full, even if the payments are made in a fixed amount of expenditure without supporting documents. The essence of the case is as follows. Guided by the norms paragraphs. "and" n. 2 tbsp. 9 of the Federal Law of 24.07.09 № 212-FZ, that compensation payments related to the performance of the employees job duties are not subject to insurance premiums, transport company on the basis of an employment contract, as well as local act to pay their drivers compensation (DSA) in 1000 rubles. for each day spent outside their places of permanent residence. On the amount of compensation premiums not paid. FSS representatives decided that since payments were made in a fixed amount, then they are allowances for traveling nature of work, that is part of the salary. Therefore, should be subject to insurance premiums. However, the courts of all levels, including the board of the SAC, the position of the representatives of the FSS. The Court recalled that the basis for calculating insurance premiums are payments accrued to the employee in connection with the performance of his employment duties. In this case, there are two types of compensation: - related to specific conditions and are part of the salary (Article. 129 TC RF); - Established for the purpose of workers compensation costs associated with the performance of their employment or other legal obligations (Art. 164 TC RF). Compensation payment as a kind of remuneration (Article. 129 TC RF) usually earned of the salary or wage rate and depend on the specific employment outcome. And in this case, a fixed amount of compensation set by the need to compensate for the additional costs associated with living Parlour is the place of permanent residence (DSA). These payments are made regardless of the outcome of labor and depended only on one thing - the number of actually performed in the way of day. Unlike business trips, to confirm the finding of delivery drivers on the road do not require preparation of travel documents. In this case, the fact of being an employee in traveling confirm reports on business trips, waybills, bills of lading. These documents contain information about the driver, route, duration of the trip and, therefore, allow you to set the amount of compensation depending on the number of days (days) that took place outside the residence. In view of the above, the Court held that the disputed payments were treated to compensation under articles 164, 168.1 LC RF. But such compensation insurance premiums are exempt under sub-clause. "And" n. 2 tbsp. 9 of the Law № 212-FZ. SAC refused to transfer the case to the Presidency of the Court.
11 august
Determination of the Russian Federation of 07.29.2014, the №VAS-9218/14

The Supreme Arbitration Court of the Russian Federation in the ruling dated 07.29.2014 № VAS-9218/14 came to the conclusion that social payments based on a collective agreement or a local act, are not challenging and not dependent on the skills of workers are not subject to insurance contributions . Therefore, if the employee compensation (his family) on the value of a voucher for spa treatment is paid regardless of the outcome of labor, not of a stimulating character, the premiums on the amount of compensation is not calculated. The same rule applies to the payment of medical services for employees and visiting staff pool. The essence of the case is as follows. On the basis of local act (Regulations on social security payments), the company reimburse all employees and their families the cost of the pool passes for the spa treatment as well as medical services. According to inspectors from the regional management FIU, these payments are made within the framework of labor relations, and therefore subject to contributions under Article 7 of the Federal Law of 24.07.09 № 212-FZ. However, the courts of all instances supported by the company. Judge reminded the representatives of the RPF, that the object of calculating insurance contributions for mandatory pension insurance and compulsory health insurance are payments made to an employee for a specific employment outcome. The mere fact of existence of an employment relationship between the company and the employees does not mean that all payments that accrue to individuals, are labor costs. In this situation, payment vouchers, health services, swimming pool was designed to protect and restore the health of employees and their family members (item 1.2 of the Regulations). A payment that are social in nature, are not challenging and do not depend on the qualifications of employees and complexity of the work itself, pay for work are not. Especially because not covered by labor contracts. Thus, the disputed payments to the base for calculation of insurance premiums are not included. SAC refused to transfer the case to the Presidency of the Court.
8 august
Resolution of the Federal District of the Moscow 02.07.2014, № A40-65246/13

The Regulation of FAS Moscow District on 07.02.2014, the number A40-65246 / 13 concluded that the company should not have to pay VAT on the amount of expenditure on food, so that employees are provided under the collective agreement. The essence of the case is as follows. Organization on the basis of a collective agreement provides employees with a free lunch. As the cost of food has not been included in the costs when calculating the tax base for income tax, tax inspectors have decided that these costs will have been included in the VAT base. As stated by the tax authorities, lunches transferred to the ownership of employees on a pro bono basis, and such transfer, pursuant to subparagraph 1 of paragraph 1 of Article 146 of the Tax Code, equal to the sale of goods, and therefore subject to VAT. The taxable base for VAT is absent only in the event that the related costs actually taken by the taxpayer in the calculation of income tax. Courts of three instances supported taxpayer. The main argument - relationships for the provision of free meals to employees due to the collective agreement and relate to labor and not civil law relations. At the same time, in the opinion of the judges, it does not matter that these costs are not deductible for income tax. Justification is. Obligation to calculate VAT on the transfer of goods (works, services) for their own needs directly related to the inability to take into account the costs of these operations in the calculation of income tax. However, in this case, the company could write off the cost of meals in the cost of labor, but did not. Failure to use the law to include the disputed costs are expensed or incorrectly reflected in the accounting and tax purposes can not cause the object to VAT. The Court's conclusion was as follows. Since the power is organized to implement the company's operations in accordance with the requirements of the collective agreement, the tax authorities had no grounds for charging VAT on the cost of food workers.
6 august
Determination of the Russian Federation of 10.07.2014 № VAS-8732/14

The Supreme Arbitration Court in its decision of 10.07.2014 № VAS-8732/14 came to the conclusion that employers who offer their employees free lunches, are not required to include these funds in the basis for calculation of insurance premiums. The same goes for parents to pay compensation for child worker in a kindergarten. The essence of the case is as follows. Organization on the basis of a collective agreement was paying child support its employees in kindergarten. Money for the garden remitted directly to educational institutions. Representatives of management FIU stated that the disputed amount needed to be included in the base for the calculation of premiums. Justification is. The list of non-taxable benefits listed in Article 9 of the Law № 212-FZ. At this rate, in particular, it is determined that the imposition of the insurance premiums are exempt certain compensatory payments stipulated by the legislation in favor of workers (n. 2 hours. 1 tbsp. 9 of the Law № 212-FZ). A payment of child support workers in preschool do not fall under the concept of compensation established by the legislation of the Russian Federation and named in Article 9 of the Law № 212-FZ. In addition, representatives of the RPF assessed that contributions to the cost of a free lunch for employees. According to representatives of the RPF, despite the fact that the employer's obligation to compensate for the cost of food has not been established in any employment or collective agreement, free lunches, in fact, are the reward as part of employment relationships. Therefore, the cost of food had to be included in the basis for calculation of insurance premiums. The courts of first and second instance agreed with the representatives of FIU: disputed payments are in fact elements of remuneration, and, accordingly, are subject to fees. However, the appeal court, and then board the SAC decided in favor of the company. Judge explained: the mere fact of existence of an employment relationship does not indicate that all payments accrued to the employee, are paying his labor. Compensation cost of meals and fees for kindergarten are social in nature, does not depend on the skills of workers, complexity, quality performance, not an element of remuneration, including because it does not provide employment contracts. Thus, the cost of maintaining employees' children in kindergarten, as well as the cost of a free lunch, the premiums do not need to charge. In the transfer of the case to the Presidium of the Russian Federation has been denied.
30 july
Resolution of the Federal District of the Moscow 04.03.2014 city №A40-13652/12

>В Постановлении ФАС Московского округа от 04.03.2014 г. (дело № А40-13652/12) со ссылкой на п. 4 ст. 328 НК РФ и Постановление Президиума ВАС РФ от 24.11.2009 г. № 11200/09 отмечено, что если в договоре займа обязанность по уплате процентов возникает в момент возврата суммы займа, то и обязанность по учету процентов по этому договору в составе внереализационных доходов в налоговом учёте возникает не на конец каждого месяца, а только в момент полного погашений всей суммы займа (в конце срока займа) или его части (в случае частичного досрочного погашения).
25 july
Resolution of the Federal Volga-Vyatka district from 17.06.2014 № A17-162/2013

FAS Volga-Vyatka region in the Decree of 17.06.2014 № A17-162 / 2013 noted that the Russian Tax Code does not envisage any special time to prepare the taxpayer objections to the results of the additional tax control measures. However, when establishing such term inspections should take into account the volume of collected materials to the taxpayer was able to review the documents and prepare objections. Otherwise, the decision on additional be held invalid. The essence of the case is as follows. To confirm the fact of violations of tax inspectors have carried out additional tax control measures. November 6 the taxpayer was aware of the documents on 285 sheets, and two days later took consideration of audit materials, taking into account the documents received in the course of additional activities. Individual entrepreneur introduced additions to the objections to the act of on-site inspection. In them, he pointed out that the said consideration of materials testing and additional measures premature as to examine and analyze this volume of documents, as well as for the preparation of reasoned objections to it requires a longer time. Despite this, the supervisors passed a resolution on bringing to justice the individual entrepreneur and additional taxes. The total amount of additional tax assessments and penalties amounted to more than 14 million. Rubles. According to the taxpayer, the inspection procedure violated the prosecution, as from the date of delivery of the help he was given a short time to give explanations and objections. In response, representatives of the inspection said that given enough time to familiarize themselves with these documents, because they do not install the new circumstances, and only confirms previous findings reported in the tax audit. However, the courts of three instances supported by individual entrepreneurs. Justification is. Violation of the material terms of procedures for handling test materials is the basis for the annulment of the prosecution (paragraph 14 article 101 of the Tax Code). These essential conditions are to ensure the possibility of the person in respect of which audited, to participate in the process of reviewing the audit materials and an explanation. Judges highlighted: participation of the taxpayer in consideration of materials should be ensured at all stages of tax control. In this case, individual entrepreneur was not provided an opportunity to present objections to the tax offense, identified with the evidence obtained as a result of additional activities. And this is a material breach of the procedures for handling materials. On this basis, the decision on additional and penalty was abolished.
23 july
Resolution of the Federal District Urals from 19.06.2014 № F09-3772/14

FAS Ural District in its Resolution of 19.06.2014 № F09-3772 / 14 came to the conclusion that the compensation for the delay in wages, which is the financial responsibility of the employer and paid in connection with employee job duties, insurance premiums are not taxed. The essence of the case is as follows. Workers were paid cash compensation for the delay in salary. Representatives of the local branch of the RPF stated that the amount of compensation should be assessed premiums. Rationale - the interest paid by the employer in accordance with Article 236 of the LC RF for salary delay, belong to the species of compensation established by Article 129 of the LC RF, ie are elements of remuneration, and therefore subject to insurance premiums. However, the Court upheld the company pointing to the next. Incentive and compensation payments are elements of remuneration in the event that possess features of wages: paid for the performance of the employee work performance, their size depends on the complexity, quantity and quality of work, are guaranteed in nature and are made automatically. With regard to compensation for the delay in salary, then it is a liability of the employer to the employee, provides additional protection for workers' rights. In other words, this payment can not be regarded as compensation to employees in connection with their official duties. Consequently, the disputed amount of compensation premiums will be awarded, the court decided.
16 july
Resolution of the Plenum of the Russian Federation of 30.05.2014, the №33

Resolution of the Plenum of the Russian Federation of 30.05.2014, № 33, in order to ensure a uniform approach to the resolution of disputes relating to the application of Chapter 21 of the Tax Code of the Russian Federation "Value Added Tax", presented an explanation of arbitration courts. The most significant aspects of the document are as follows:
  1. In determining the tax consequences of the disposal (write-off) of the property as a result of the events beyond the control of the taxpayer (loss of property due to damage, fight, theft, natural disaster, or similar events) should be borne in mind that the basis of the content p. 1 tbsp. 146 of the Tax Code is not a disposal operation to be considered when forming the object of taxation. If at trial established that disposal of property, but not confirmed, that the disposal has taken place as a result of the events beyond the control of the taxpayer, the courts should proceed from the presence of his duties calculate tax under the rules set n. 2 tbsp. 154 of the Tax Code for the sale of the property free of the cases (n. 10).
  2. Failure by the taxpayer in carrying out economic activities of certain requirements established by both public law and civil law (for example, failure to obtain, where necessary licenses, permits or other approvals, failure to registration of the contract, etc.) implies adverse tax consequences for him (eg, inability to use tax exemption for certain operations, use the tax deductions, tax claim for reimbursement from the budget, etc..) only if it is expressly provided the provisions of Part Two of the Tax Code, in particular Art. 149 of the Tax Code (p. 11).
  3. Transfer counterparty goods (works, services) as souvenirs, gifts and bonuses without charging him with a separate fee is subject to VAT as the transfer of the goods free of charge, unless the taxpayer can prove that the price of basic goods includes the cost of souvenirs, gifts and al., and calculated with the basic operation encompasses tax and transfer. In the case of transfer of goods (works, services) for promotional purposes, such operations are subject to taxation on the basis of paragraphs. 25 P. 3 tbsp. 149 of the Tax Code, if the cost of the acquisition (the creation of) units of goods (works, services) exceed $ 100. At the same time can not be regarded as an operation that forms an independent object of taxation, distribution of promotional materials, which is part of the taxpayer to promote the market produced and (or) sold them goods (works, services) in order to increase sales, if these promotional materials do not meet the characteristics of the goods, that is, the property intended to be sold in its own quality (p. 12).
  4. Assignment of buyer demand for the return of monies paid to the seller in the forthcoming transfer of goods (works, services), for example because of the termination of the contract or annulment can not be taxed, because the operation is to return the seller received as an advance payment funds are not subject to taxation. At the same time, with the subsequent assignment of the monetary claim by the assignee, is not a party to the contract sale of goods (works, services), such transaction shall be subject to taxation under the rules set n. 2 tbsp. 155 of the Tax Code (p. 13).
  5. By part. 6 tablespoons. 88 of the Tax Code during the desk audit taxpayers to request the tax authorities are required to submit documents confirming the right to tax deductions for their use. In the application of this provision the courts should take into account the definition of "tax relief" given in Sec. 1 tbsp. 56 of the Tax Code, according to which of the tax benefits granted to individual categories of taxpayers advantages over other taxpayers. In connection with this action item. 6 tablespoons. 88 of the Tax Code applies to those listed in Art. 149 of the Tax Code grounds for exemption from taxation, which by their nature are responsible notion of a tax benefit. Therefore, with reference to the provisions of §. 6 tablespoons. 88 of the Tax Code of the taxpayers are not obliged to records on transactions which are not subject to taxation (n. 2 of Art. 146 of the Tax Code), or exempt from taxation on the basis of Art. 149 of the Tax Code, when such an exemption is not intended to provide specific categories of persons advantages compared to other perpetrators of the same operation, but a special tax rules related transactions (p. 14).
  6. A taxpayer must determine the tax basis according to the rules of Art. 167 of the Tax Code in the case when the next sale of goods (works, services) with the participation of an attorney (commission agent, agent), providing for these purposes the timely receipt of attorney (commission agent, agent) documented evidence of the transactions for the shipment (transfer) of goods (works, services) and payment (ie quarterly) (p. 16).
  7. If the contract is no direct reference to the fact that it set the price does not include the amount of tax and otherwise follows from the circumstances preceding the conclusion of the contract, or other terms of the contract, the courts should proceed from the fact that the demands on the amount of the buyer by the seller released the last of the tax specified in the contract price, which is calculated by the method by assertion. 4 tbsp. 164 of the Tax Code (p. 17).
  8. For the purposes of the provisions of paragraphs. 2.1 p. 1 tbsp. 164 of the Tax Code it applies to freight ekspeditsionnyeuslugi rendered in respect of goods which are the subject of international transportation, regardless of whether an organizer for the International Carriage itself forwarder or zakazchiktransportno forwarding services, or another person (ie, the tax rate 0 percent is used as carriers, providing services to the international carriage of goods at various stages of transportation) (p. 18).
  9. In cases where capital investment in the lease to the tenant in addition to the payment made ​​to the lessor the rent, the tenant may deduct the amount of VAT against him in the general procedure as for the application of Art. 171 of the Tax Code should be seen as a person who acquires the goods (works, services) for the needs of their economic activities. In the case of payment by the lessor of capital expenditures related leasehold improvements to leased property shall be deemed transferred to the lessor to pay for them. In this case, previously adopted by the lessee to deduct the amount of tax imposed them to the lessor in relation to the provisions of par. 1 tbsp. 168 of the Tax Code. In turn, the landlord as the owner of the leased object, who took upon himself the burden of capital investments made ​​against the tenant in this order or the amount of tax can be deducted in accordance with Art. 171 of the Tax Code, or include in the costs when calculating the income tax on the basis of Art. 170 of the Tax Code (p. 26).
  10. By part. 2 tbsp. 173 of the Tax Code positive difference formed by the excess amount of tax deductions over the amount of tax calculated on taxable transactions shall be reimbursed to the taxpayer of the budget upon the submission of their tax return before the expiry of this paragraph, the three-year period. Because of this rule provides otherwise, the tax benefits will be reflected by the taxpayer in the tax return for any of the members of the relevant three-year period of tax periods (p. 27).
9 july
The decision of the RF from 12.04.2013 № VAS-13048/13

В Решении ВАС РФ от 04.12.2013 г. № ВАС-13048/13 со ссылкой на пп. 5 п. 2 ст. 265 НК РФ отмечено, что организация, осуществляющая розничную торговлю в магазине самообслуживания, вправе учесть в составе расходов в целях исчисления налога на прибыль суммы товарных потерь при условии, что виновные лица не установлены. Письмо Минфина России от 06.12.2012 г. № 03-03-06/1/630,обязывающее подтверждение этого факта постановлением следователя органов внутренних дел России о приостановлении или о прекращении уголовного дела, не соответствует п. 1 ст. 252 НК РФ признано не действующим в указанной части.
2 july
Resolution of the Federal North Caucasus region of 30.04.14 № A32-6489/2013

FAS North Caucasus region in its Resolution of 30.04.14 № A32-6489 / 2013 came to the conclusion that if the company had applied for change of address, but the appropriate changes are not registered in the register, the inspectors in the old place of registration of the right to make the on-site verification. The essence of the case is as follows. The organization filed a petition to amend the Incorporation in connection with a change of location. The day before making changes to the register, designated inspection site inspection. The reason for the revision was not only moving company, but the suspicion is that the taxpayer was not engaged in financial and economic activity, but wrongly claimed VAT deduction. The company went to court, claiming that the check is assigned to a non-authorized tax authority. The Organization stated that, in assessing the legality of the decision to conduct the examination must consider not only the date of appointment of the audit, but also the date of creating an account on the audit in a computer program. And in this case, such a record is created after the entity has been put on record in another inspection. However, the courts have upheld the tax office, pointing to the next. The decision to conduct a field tax audit makes the tax authority at the location of the organization or at the place of residence of an individual (n. 2 of Art. 89 of the Tax Code). The date of removal from the register and registration with the new inspection is a corresponding entry in the Unified State Register of Legal Entities (Entities) or the Uniform State Register of Individual Entrepreneurs (EGRIP). In this case, at the time a decision to conduct on-site inspection organization was still at the same address as the changes made ​​in the Unified were not. Consequently, the decision to conduct on-site inspection is legitimate. The argument of the fact that the date of the decision of the tax authority should be the date of its creation in the electronic document management system, was also rejected. The Court explained that the start date of a spot-check is the date of adoption by the tax authority of the solution, not the time of its registration in the electronic document management system.
25 june
Determination of the Russian Federation of 26.05.2014, the №VAS-5881/14

SAC in a ruling dated 26.05.2014 № VAS-5881/14 (refusal to refer the case to the Presidium of the court) concluded that in areas where there is a regional coefficient, you must first need to determine the average daily wage on the basis of actual earnings, and then determine the average daily wage on the basis of the minimum wage, and the resulting value of the coefficient multiplied by the district. If calculated from the minimum wage and multiplied by a factor of the average daily wage is more than "actual", the benefit is calculated based on the minimum wage, taking into account the coefficient. The Court pointed out that the district is the coefficient compensation payments for work in special climatic conditions. Therefore, it should be applied on the first stage of the calculation of benefits - in the calculation of the average daily wage (as of the actual time worked, and of the minimum wage), but not when it is calculated allowance. Accordingly, in areas where there is a regional coefficient, it is necessary to apply the following algorithm for calculating benefits. First you have to determine the average daily wage on the basis of actual earnings. You then need to determine the average daily wage on the basis of the minimum wage, and the resulting value of the coefficient multiplied by the district. If calculated from the minimum wage (at a rate), the average daily wage is more than "actual", the benefit is calculated based on the minimum wage, taking into account the coefficient.
18 june
Resolution of the Federal District Urals from 25.04.2014 № F09-2274/14

FAS Ural District in its decision of 25.04.2014 № F09-2274 / 14 came to the conclusion that the failure of the FSS in the decision to offset the cost of benefits for temporary disability is not grounds for additional charges on these insurance premiums. The lawsuit was the following situation. Due to errors in the certificate of incapacity representatives of the Perm regional branch of the Social Insurance Fund refused to offset the cost of benefits. The Company is obliged to pay the arrears in the amount of missed offset amounts of benefits. In this case, the amount of such arrears auditors accrued premiums. However, the courts of three instances pointed out by the FSS on the illegality of the decision. For, in fact, the premiums were charged on insurance premiums (arrears). Arbitrators are reminded that insurance premiums are subject to the payment of accrued under the employment relationship (Article. 7 of the Federal Law of 24.07.09 № 212-FZ). Amounts missed to offset spending on benefits are not automatically benefit to employees as part of employment relationships. Failure of the Fund's decision to offset the costs does not change the social orientation of the uncommitted amounts. Errors in sick leave actually involve only the refusal to accept the costs are offset rather than refusal to pay temporary disability benefits, and do not indicate underestimation of the base for calculation of insurance premiums. Therefore, even if the fund does not take social insurance to offset the amount of benefits paid to employees, these amounts donachislyat premiums do not need, the Court concluded.
11 june
Resolution of the Federal District Urals from 29.04.2014 № F09-1691/14

FAS Ural District in its Resolution of 29.04.2014 № F09-1691 / 14 came to the conclusion that the failure to deduct VAT on the sole ground that the invoice is a misprint in the VAT, is wrongful. The essence of the case is as follows. The organization submitted to the inspection of the VAT return, saying the deduction of 90 thousand. Rubles VAT. However, tax deductions and assessed that removed the tax due to the fact that the invoice was a mistake in the TIN. It was a doubling of the numbers in the inn, that is, the identification number was not 10, but from 11-digits. Tax inspectors decided that the VAT does not identify the specific taxpayer that is a violation of paragraph 5 of Article 169 of the Tax Code. Therefore, under such invoice VAT not deductible. The company went to court and won the case in three instances. Argument to the Court was that, in paragraph 2 of Article 169 of the Tax Code of the Russian Federation said: errors in invoices that do not affect the identification of the seller and buyer of goods (works, services, property rights), shall not constitute grounds for refusal to deduct VAT. In this situation, an incorrect designation VAT invoice is a mistake that will not cause difficulties in the identification of the seller. On this basis, the courts have recognized the company for the right to deduct VAT.
4 june
Determination of the Russian Federation of 24.03.2014 № BAC 2849/14

Supreme Arbitration Court in its decision of 24.03.2014 № BAC 2849/14 was of the opinion that the tax overpayment at the application deadline for its return may be considered bad debt and, therefore, taken into account in the determination of cost base for income tax . The essence of the case is as follows. At the time when the company became aware of the overpayment of property tax, three-year term on its return from the budget had long been ignored. The organization considered such overpayment bad debt and recorded in costs, reduce income tax. Basing his opinion that the costs in the form of bad debts (debts irrecoverable), which ended the limitation period is recorded as non-operating expenses (cop. 2 p. 2 tbsp. 265, p. 2 of Art. 266 of the Tax Code ). However, tax inspectors have removed these costs and assessed that the income tax. These actions meet the position the Russian Finance Ministry, who spoke out against the write-off for tax purposes of overpayment of taxes as a bad debt. Several years ago, the Ministry of Finance experts reported that the application for credit or the refund of overpaid tax can be filed within three years from the date of payment of the said sum (p. 7, Art. 78 of the Tax Code). If the company did not do so, the amount of the overpayment is not receivable and bad debt is not recognized in accordance with paragraph 2 of Article 266 of the Tax Code. In other words, the company is to blame that outstay tax refund. In addition, pursuant to paragraph 4 of Article 270 of the Tax Code as the sum of consumption tax are not taken into account in determining the tax base for income tax (Letter dated 08.08.2011 № 03-03-06 / 1/457). However, the SAC ruled in favor of the company, referring to the definition of the Constitutional Court of 08.02.2007 № 381-OP. In paragraph 2 of the definition states that the amount of overpaid tax is subject to all the constitutional guarantees of property rights, in view of the fact that in this case the tax is paid to the budget without legal obligation and the basis (ie, the overpayment is inherently not a tax, so the point 4 of Article 270 of the Tax Code, which prohibits expensed amount of taxes paid on the overpayment does not apply). Thus, the amount of the overpayment of tax that is not refunded by the tax authority in connection with the omission of the organization of three years to apply, can be accounted for in the cost for tax purposes as a bad debt, concluded UPU RF, and refused to transfer the case to the Presidium this Court.
28 may
Resolution of the Federal Northwest District from 15.05.2014, № A44-3041/2013

FAS Northwestern District in its Resolution of 15.05.2014, № A44-3041 / 2013 came to the conclusion that the gifts to employees on the occasion referred to the collective (labor) contract or a local act, are a form of payment, and therefore included a base for calculation of insurance premiums. The essence of the case is as follows. Congratulations for workers Fatherland Defender's Day, March 8, and the World Donor Day, the company bought the certificates to a local fitness club for 500, 540, 720, 800 and 900 rubles (the total value of the gifts amounted to 9.7 million. Rubles). According to the employer, gifts did not relate to wages, so a given amount of insurance premiums do not need to charge. However, in such a position FSS considered erroneous. Auditors FSS said that since the payment in the form of a valuable gift made ​​by the employer with whom the employee is associated labor relations, they are regarded as carried out in the framework of an employment relationship. Gifts to the holiday dates given to employees on the basis of orders of the head of settlement and payroll, with the donation contract in writing were not decorated. Accordingly, the value of the gifts is considered as an element of remuneration and subject to insurance premiums. Since this was not done, the inspectors have fined the company pursuant to paragraph 1 of Article 47 of the Federal Law of 24.07.09 № 212-FZ, in the amount of 284 thousand. Rubles. The Court recognized the legitimate penalty, stating the following. Article 135 of the Labor Code provides that an employee's salary is set employment contract in accordance with a given employer wage system. The system of remuneration, including bonuses and allowances of incentive-based bonus system and are established by collective bargaining agreements, contracts, local regulations. In this situation, rewarding employees with valuable gifts made ​​in the order approving the regulations on promotions, which is an integral part of the collective agreement. This local act clearly states: the main criteria for promotion are the efficiency and professionalism of the employee in matters within its competence, in the preparation of documents, execution of orders of the head; timely, good faith, high-quality execution of duties. Moreover, based on the content of employment contracts, incentive payments established by the collective bargaining agreement, are part of the wages. All this, according to the Court indicates that the disputed payments in the form of gifts made ​​within the framework of labor contracts and labor relations are elements of remuneration. And since they are not named in the list of tax-free payments (Article 9 of the Law № 212-FZ), they shall be subject to insurance premiums.
21 may
Resolution of the Federal District of the Moscow 04.21.14 №A41-34916/13

Federal District of Moscow in its Resolution of 21.04.14 № A41-34916 / 13 came to the conclusion that, even if the company does not make payments to individuals, it is required to submit to the FIU payment of accrued and paid insurance premiums. For failure to zero reporting relies fine of 1,000 rubles. The essence of the case is as follows. Under current law, for failure to provide the calculation of premiums is a penalty of 5 percent of the amount of insurance premiums, accrued expense for the last three months of the reporting (settlement) period, but not more than 30 percent of this amount and not less than 1 000. This is stated in paragraph 1 of Article 46Federalnogo Act of 24.07.09 № 212-FZ. Guided by this norm, the auditors FIU fined 1,000 rubles for failure to timely "zero" report. Organization with the decision of the Fund did not agree and went to court. In its defense, the insurer said that the business is no longer and has no employees. And since the payment of compensations to individuals is not made, then the amount of the fine for failure to report a zero must be zero. The Court considered this position Insurer wrong. Justifying it in a way that a business created for entrepreneurial activity for profit, and under normal conditions of economic exchange uses the labor of employees on the basis of employment contracts and contracts of civil nature. Payments to individuals are subject to taxation of insurance premiums. Control over the correctness of calculation and timely payment of insurance premiums for the purpose of ensuring the rights of insured persons on the basis of calculations of contributions. Thus, organizations are payers of insurance premiums due to the presence status of a legal person, regardless of whether they actually make payments to individuals or not. In view of the foregoing, the Court concludes that because the company did not provide the form of RSV-1 within the prescribed period, the supervisors legally imposed minimum fine of 1,000 rubles.
12 may
Resolution of the Federal Central District of 25.04.2014, the №A62-2115 / 2013

FAS Central District in its Resolution of 25.04.2014, the №A62-2115 / 2013 came to the conclusion that even if the newly registered company has no employees, it must report to the Federal Tax Service of the average number of employees. The essence of the case is as follows. Tax inspectors for the city of Smolensk fined the company on the basis of Article 126 of the Tax Code for failure to provide information about the average number of employees for the preceding calendar year. According to auditors, a company incorporated in August 2012, was to present a report on the average number until September 20. The organization refused to pay the fine and go to court. As explained by the plaintiff, in the state of a newly created company had no employees. And if so, then submit to the tax authority information on the average number of employees was not required. However, the courts of all levels have recognized this approach wrong. The Court recalled that, in the case of a (reorganization) of the report on the average number required to pass the tax office no later than the 20th of the month following the month in which the organization was established (p. 3 tbsp. 80 of the Tax Code). The Tax Code does not relieve the organization who have no employees, from the obligation to submit the specified information. In addition, the average number of employees assigned to the parameters that affect the procedure for the calculation of taxes and the use of different tax regimes. Thus, a newly created organization is obliged to provide information on the average number in a timely manner, regardless of whether they have a full-time employees or not.
30 april
Resolution of the Federal Volga Region of 20.03.2014, №A55-12200/2013

FAS Volga District in its Resolution of 20.03.2014, № A55-12200 / 2013. Concluded that the designation of an incorrect TIN in the hotel bill is not grounds for additional taxation of income. The Court considered the following argument. Employees under report were issued for cash payment of hotel services during the period of official missions. During the test, the tax found that checks hotels and parking lots, paid staff on mission, a nonexistent INN. Tax inspectors said that because the documents contain false information, the disputed costs to take into account the costs can not be. As a result, the company was assessed additional income tax expense in the amount of 200 thousand rubles. However, the court with your tax inspectors did not agree. The judges noted that the expenditure verification personnel expense report submitted with the application of payments. They contain all the necessary details, including the signature and seal, in which contacts were mentioned hotels and car parks. Inspection argument that the organization, which were home to workers who are not registered in the register, the court rejected. The reason - the duty of the company to check the fact of registration of the Tax Code of accommodations are not available (decision of the Arbitration Court of Samara Region of 13.09.13 № A55-12200 / 2013). As a result, the courts of all instances have come to the conclusion that the company reasonably take into account travel expenses, including the costs and services of the hotel and car park.
28 april
Determination of the Russian Federation of 03.19.2014 № VAS-2662/14

The Supreme Arbitration Court of the Russian Federation in the ruling dated 19.03.2014 № VAS-2662/14 came to the conclusion that if the company can prove that workers use the services of a taxi in order to perform job duties, then the fare paid by the employer premiums are not charged . The essence of the case is as follows. Bank has entered into a contract with a transport company to provide services for the transport of workers by taxi. Trips were made in order to repair the equipment, on-site service, delivery and receipt of the documents in the organs Rosreestra participation in court hearings, and so forth. Taxi service paid to the carrier by the end of the month in non-cash form. The inspectors from the Pension Fund believed that business need to travel by taxi was not. And if so, then the payment by the employer of trips is a personal benefit employee received in kind. Accordingly, the cost of taxi services in accordance with paragraph 6 of Article 8 of the Federal Law of 24.07.09 № 212-FZ to be included in the basis for calculation of insurance premiums. However, the court with the position of the Pension Fund of the Russian Federation did not agree. Justifying it as follows. From taxation exempt compensation insurance premiums associated with the performance by an individual job duties (cop. "And" n. 2 hours. 1 tbsp. 9 of the Law № 212-FZ). According to article 164 of the Labour Code compensation - monetary payments is established in order to compensate employees costs associated with the performance of their employment or other duties under the LC RF and other federal laws. In this case, the fact that the travel was for the purpose of performing work duties, indicate the following circumstances. Disputed payments (with taxi services) made ​​on the basis of a civil contract for the provision of services for the transportation of employees of the bank (ie, within the framework of civil and legal relations between the two entities). By the end of each month signed an act of the services provided with details of the date, time, itinerary and cost of services rendered. Also every month for each trip is an internal document of the bank, where in addition to the above findings indicate name of the organization, where to send the employee, and the purpose of the trip. Payment for services performed by the carrier's customer service by wire transfer. In this case, the inspectors of the Pension Fund of the Russian Federation did not provide evidence that the payment to the carrier made ​​in the interests of individual employees and are their income. In view of the judges decided that in this situation the cost of taxi service in the base for the calculation of insurance premiums is not included.
23 april
Determination of the Presidium of the Supreme Arbitration Court of the Russian Federation of 04.08.2014, the №A73-13807 / 2012

The Presidium of the Supreme Arbitration Court of the Russian Federation at the meeting of 08.04.2014 (Case number A73-13807 / 2012 of the Arbitration Court of the Khabarovsk Territory) has determined that the amount that the employer pays an employee to work on a rotational basis, in the Far North and equivalent areas in as compensation for travel expenses from place of residence to place of work and back to the base for calculation of insurance premiums are not included. The essence of the case is as follows. The Company reimburses employees working in shifts, the fare from their place of residence of the passport to the gathering place in Khabarovsk (to the central office). Further passage (from the collection site to the sites), the employer pays for itself. According to representatives of the Pension Fund of the Russian Federation, on the premiums available only fare from the assembly to shift sites, and since the payment of travel from the place of residence of workers to the office of the company had to charge the premiums. Since this was not done, the insurer was held liable on the basis of paragraph 1 of Article 47 of the Law № 212-FZ. Additional charges, fines and penalties amounted to more than 2.3 million. Rubles. The courts of the first three instances supported representatives of the Pension Fund of the Russian Federation. The courts have noted that before an employer really had to pay for transportation workers from their home to the point of collection. Such a duty has been provided by paragraph 2.5 of the Basic provisions on rotational basis Works (approved. Secretariat of Trade Unions and the Ministry of Health of the USSR from 31.12.1987, № 794 / 33-82). However, this rule has been invalidated by the Supreme Court of the Russian Federation of 17.12.1999 № GKPI99-924. In this regard, the courts have concluded that the fare "shift workers" can be attributed to the number of tax-exempt contributions to compensation only if the act of organizing a local collection point set and from the organized workers is delivered to the place of business of the company. That is, in this case from the premiums available fare from the office (gathering place) to the camps. With regard to the reimbursement of the cost of travel from the place of residence of workers to the location of the office of the employer, such amounts are subject to insurance premiums. The lack of uniformity of arbitration practice on this issue was the reason for the referral of the case to the Presidium of the Russian Federation (the definition of the Russian Federation of 04.03.14 № BAC 16954/13). In this case, the SAC Board noted that the lower courts, in particular, do not take into account the following facts. First. In the Supreme Court, which invalidated the item in terms of the mandatory payment of travel from their home to the point of collection, did not contain a prohibition of voluntary compensation for the employer costs for employee travel from place of residence to the place of collection. Second. Delivery costs rabotnikov- "watchmen" of the place of residence (the collection) to the place of work and back, provided the collective bargaining agreement, are the other costs associated with the production and sale, and not to the cost of labor (under. 12.1 p. 1 tbsp . 264 of the Tax Code). Then there are the costs associated with the performance of the employees job duties are not included in the remuneration system. Third. All kinds of statutory compensation payments related to the implementation of the employees job duties are not subject to insurance contributions (cop. "And" n. 2 hours. 1 tbsp. 9 of the Law № 212-FZ). In accordance with Article 313 of the LC RF additional compensation for employees of "northern" organizations can be established, including collective agreements, agreements and local normative acts based on the financial capacity of the employer. Based on the foregoing, the panel of judges of the RF, decided to transfer the case to the Presidium, came to the following conclusion. Provided for by the collective agreement for the payment of compensation for workers fare from their home to a collection point and back are compensatory. They are installed in order to compensate employees costs associated with the performance of their work duties, and are not included in wages. Therefore, such payments are not subject to insurance contributions under subparagraph "and" paragraph 2 of Part 1 of Article 9 of the Federal Law of 24.07.09 № 212-FZ. Presidium meeting on 08.04.2014, the company has also supported abolishing judicial acts first, appellate and cassation.
18 april
Resolution of the Federal Western Siberian region of 24.03.2014, the №A75-3926/2013

FAS West Siberian District in its Resolution of 24.03.2014, the number of A75-3926 / 2013 came to the conclusion that the company can not take pictures audit materials as it is a violation of tax secrecy. The essence of the case is as follows. The company appealed to the tax office to provide it with a room for photographic materials inspection. Tax officials said that when apprised of the audit photographing is prohibited. At the same time, tax inspectors sent the taxpayer a copy of the site inspection with applications for 280 sheets. The organization appealed to the Tax Office against the actions of the chief of the inspection and asked to oblige inspectors to issue audit materials for their photography. However, the Federal Tax Service also refused. The taxpayer appealed to the court, but lost in all instances. In deciding in favor of the tax office, the Court stated the following. The tax authority is obliged to give the taxpayer a copy of the inspection report and the documents proving the violations found. At the same time, the obligation to provide a copy of all inspection materials check the current legislation does not explicitly provide. In addition, the court stated, in accordance with the provisions of paragraph 1 of Article 102 of the Tax Code, any resulting tax authority (as well as the bodies of internal affairs, investigative bodies, public extra-budgetary fund, the customs authority) information about the taxpayer constitute a tax secret. On the basis of the current legislation, the taxpayer is entitled to consult the test only to the extent that it does not violate the rights and legitimate interests of third parties, the court decided. As inspectors gave the taxpayer the opportunity to familiarize himself with the test by sending him copies of them, the court found no violation of the rights of the company in connection with the refusal to take pictures of documents.
16 april
Resolution of the Federal Western Siberian region of 05.03.2014, the №A70-4564/2013

FAS West Siberian District in its Resolution of 05.03.2014, № A70-4564 / 2013 came to the conclusion that the absence of a certificate of incapacity mention of the name of the physician specialty and is a minor mistake, for which the employer is not responsible. Therefore, if the fact of occurrence of insured events is not disputed, the flaws in the ballot, admitted doctor, are not grounds for refusal to take to offset the cost of paying benefits. The essence of the case is as follows. Tyumen regional branch of the FSS has not taken to offset benefit costs due to errors in the certificate of incapacity. Namely, in the bulletin did not specify the name and specialty of the attending physician; period of leave from work for more than 30 calendar days has been issued without the involvement of the medical commission. According to representatives of the FSS, the employer could not take the employee incorrectly decorated sick leave. Since he did not use this right and paid sick leave, the Fund is not required to reimburse. The courts of all instances sided with the organizations referred to the next. The very fact of insured accidents on sick leave Social Security Fund is not disputed, and the violations are not substantial. The Fund has not demonstrated that the defects in the design of hospital sheets affect the data, which are essential for decision to offset the costs of compulsory social insurance. In addition, the judge noted that inaccuracies in sick leave were allowed a medical institution. Therefore, the responsibility for such errors can not be attributed to the employer. In addition to the above arguments the Court noted that the authorities have the right to sue the FSS to healthcare organizations for reimbursement of expenditure on insurance coverage issued by unreasonably or improperly issued a certificate of incapacity.
11 april
Resolution of the Federal District of the Moscow 21.02.14 №A41-57760 / 12

Speaker of the Moscow District in its Resolution of 21.02.14 № A41-57760 / 12 came to the conclusion that if the part of the premises is not actually used in trading activities, the payer UTII can not ignore this part of the determination of the physical index "sales area (in square meters) . " The essence of the case is as follows. The Company applies the mode UTII retail presence, calculated on the basis of a flat tax actually used leased space. However, the inspectors stated that the taxpayer has reduced the tax base, and assessed that UTII counting the benchmark return in accordance with the sales area, which was listed in the title and inventory documents. However, the court decision on additional tax canceled. As the Court pointed out, mandatory points of reference for the areas classified as "floor space" and the account in the calculation of their UTII is the actual use of space. This should be confirmed by a set of evidence. In this situation, the company introduced a scheme of use of the premises, orders on the allocation of sales area. The taxpayer explained that the business area has been allocated racks and other temporary structures, preventing the passage of visitors. Also during the trial were questioned persons who confirmed that fact under the trading floor was used only part of the premises. On this basis, the court concluded that the company has considered reasonable physical parameters corresponding to the size of actual use of the shopping area. Link of the tax that the leases and technical certificates BTI do not contain changes in the area of ​​trade halls, the Court rejected. Justification - when the business area is shown with temporary structures, changes in constitutive and inventory documents in accordance with the current legislation is not introduced.
9 april
Resolution of the Federal Western Siberian region of 14.03.2014, № A81-2538/2013

FAS West Siberian District in its Resolution of 14.03.2014, № A81-2538 / 2013 came to the conclusion that the application of the regime singled out the USN, which was the property of the reorganized company is not required to recover VAT on the resulting property. The essence of the case is as follows. As a result of the reorganization in the form of separation was created by a legal person using the USN. On the basis of the transfer balance it got fixed assets. Tax officials said that the company was spun off to recover VAT previously reimbursed by the predecessor of the present property. Since this was not done, the inspectors assessed that tax and interest. Explaining his position, the tax referred to in sub-paragraph 2 of paragraph 3 of Article 170 of the Tax Code. According to this rule, taken to deduct VAT on the purchase of property to restore, if in the future the property will be used by persons who are not VAT payers. Organizations using razhim USN exempt from VAT (p. 2 tbsp. 346.11 of the Tax Code). Consequently, the successor shall restore and make the payment of VAT in respect of the property transferred to it by the reorganized legal entity. However, the courts of all instances supported by the taxpayer, stating the following. If the reorganized company transfers to the assignee of the property in respect of which it adopted the VAT deduction, the assignee is not required to restore the appropriate amount of tax. This is stated in paragraph 8 of Article 162.1 of the Tax Code. Obligation to recover VAT charged only to those taxpayers applying mode USN, who had previously used the general taxation system. According to the judges, the VAT should be restored only by the person to whom the tax was refunded, and which formed the source of the recovery of VAT. As the successor organization is not to claim a deduction of VAT on receipt of property, it is not liable to this tax. Therefore, to recover the VAT it is not required, the Court ruled.
4 april
Resolution of the Federal District of the Moscow 23.01.2014 city №A40-14698/13-91-51

The Regulation of FAS Moscow District on 23.01.2014 (case number A40-14698 / 13-91-51) noted that, in accordance with Clause 1, Article. 310 of the Tax Code tax on income earned by a foreign organization from sources in the Russian Federation, is calculated and withheld by a Russian organization at each payment of income referred to in Sec. 1 tbsp. 309 of the Tax Code, except as provided in sub. 2 tbsp. 310 of the Tax Code, in the currency of payment of the income. In paragraphs. 4 p. 2 tbsp. 310 of the Tax Code exception is made for the payment of income which, in accordance with international treaties (agreements) are not subject to tax in the Russian Federation, provided that the foreign entity to a tax agent a confirmation set n. 1 tbsp. 312NK Russia. At the same time, by virtue of para. 2 p. 1 tbsp. 312 of the Tax Code such confirmation shall be submitted to the tax agent before the payout date.
2 april
Resolution of the Federal District of the Moscow 26.12.2013 city №A40-132828/12

The Regulation of FAS Moscow District on 26.12.2013 (case number A40-132828 / 12), with reference to Articles 100 and 101 of the Tax Code of the Russian Federation noted that the tax authority shall confirm the receipt of the inspection report and the taxpayer notice of the place and time of the material in the case of sending the above documents by mail. The mere fact of sending documents by e-mail a cover letter, as well as the presence of the mark of the Russian Post is not evidence of proper notice and the absence of such evidence may be grounds for annulment of the decision of the tax authority, adopted following the consideration of the audit materials. Moreover, the inspection should be undertaken the necessary and sufficient measures to notify the taxpayer, so having information about the room number for an organization, place of residence CEO, however, ignored the possibility of inspection notify society with all available methods, which led to the violation of the rights of the taxpayer to file an objection to the conclusions inspections contained in the tax audit. Given the above, the company has actually been deprived of the opportunity to participate in the study (refutation) of evidence obtained during the desk audit. In these circumstances, the courts have made a correct conclusion that the tax audit report is considered by the Tax Inspectorate in the absence of representatives of the person from whom the tax liability is not properly notified about the time and place of the tax audit materials. These violations are recognized legislator significant, since they hinder the person in respect of which tests are to participate in the process of reviewing the audit materials personally. Violation of the material terms of the procedure of consideration of a tax audit is the basis for cancellation of the higher tax authority or court decisions of tax authorities to prosecute for tax offenses, or a decision to refuse to prosecute for tax offenses.
27 march
Resolution of the Federal District of the Moscow 25.12.2013 city №A40-34818/13

The Regulation of FAS Moscow District on 25.12.2013 (case number A40-34818 / 13) noted that the tax legislation does not contain provisions that provide restoration of a previously lawfully admitted for deduction of VAT in respect of goods lost due to fire, and n. 3 Art. 170 of the Tax Code provides for cases in which the amount of tax deducted by the taxpayer received the goods (works, services), including fixed assets and intangible assets, property rights, subject to recovery. This article contains an exhaustive list of circumstances in which the taxpayer is required to restore a sound decision to deduct VAT on purchases of goods and materials. In this list there is no such basis for the recovery of VAT, as the loss of the goods.
25 march
Resolution of the Federal District of the Moscow 16.12.2013 city №A40-33073/13

The Regulation of FAS Moscow District on 16.12.2013 (case number A40-33073 / 13) with reference to paragraph. 4 PBU 1.6, Articles 374 of the Tax Code i375 noted that until the return of the leased property to the permanent improvements to the lessor or reimbursement of expenses incurred is the latest tenant shall be the person performing the capital investment, it is incumbent on their reflection in the accounting, plant and equipment and that it is subject to taxation property.
21 march
Determination of the Russian Federation of 31.01.2014 №VAS-497/14

The Supreme Arbitration Court of the Russian Federation in the ruling dated 31.01.14 № BAC 497/14 came to the conclusion that during the desk audit, tax inspectors have the right to demand documents from taxpayers who use tax exemptions. However, it is necessary to delimit benefits from situations in which there is no object of taxation. Transactions are exempt from VAT by virtue of Article 149 of the Tax Code, to the benefits are not treated. Accordingly, the tax inspectors do not have the right to demand that the taxpayers primary documents confirming the performance of such operations. The essence of the case is as follows. When conducting a desk audit tax office has no right to demand from the taxpayer for more information and documents (paragraph. 7, Art. 88 of the Tax Code). However, this rule there are some exceptions. One of them - the use of taxpayer tax benefits (paragraph. 6 Art. 88 of the Tax Code). Some inspections believe that relate to benefits, including transactions not subject to VAT (their list is enshrined in Article 149 of the Tax Code). During the desk audit, tax inspectors have requested of the documents confirming the legality of the VAT exemption of operations (granting of loans), referred to in section 7 of the VAT tax return. The request for documents were listed invoices, book sales, loan agreements, payment of interest on loans. The organization has refused to provide the documents and tax inspectors fined the company on the basis of Art. 120 of the Tax Code, "gross violation of the rules of income and expense and the objects of taxation." The courts of all instances decided in favor of the taxpayer. As pointed judge, recognition for the purposes of taxation of transactions that are exempt from VAT, means that such operations are not included in the tax base of this tax. While the benefits - these are the advantages for certain categories of taxpayers, which include the ability to not pay tax or pay it in a smaller size (p. 1 tbsp. 56 of the Tax Code). Thus, the exemption from VAT, the Tax Code for certain transactions to the benefits are not equal. Consequently, the organization is not required to submit during the desk audit documents in case in Section 7 Declaration include the operations that are not subject to taxation, including the operations of issuing loans.
19 march
Determination of the Russian Federation of 25.02.2014 №VAS-1259/14

The Supreme Arbitration Court of the Russian Federation in the ruling dated 25.02.2014 № BAC 1259/14 came to the conclusion that the lack of professional experience in the employee finding work before maternity leave, no evidence of the creation of the situation, aimed at the unlawful receipt of funds from the Social Security Fund. The essence of the case is as follows. Regional Office FSS from Kaliningrad refused to reimburse the individual entrepreneur expense worker benefits and maternity leave. According to inspectors, individual entrepreneur has created an artificial situation, aimed at illegal receipt of the Fund. Basis for the conclusion was the fact that the employee has been accepted for the position of store manager for 2.5 months before leaving on vacation for child care. In this case, the insurer before such a post in the staffing absent. In addition, experts FSS drew attention to the fact that the employee has been unemployed for several years, and shortly before the insured event was arranged just two jobs (main and part-time). The courts of all instances decided in favor of the individual entrepreneur, pointing to the next. The first - the payment of benefits and the adoption of cost does not depend on how long the employee worked before the insured event or the gestational age at the date of employment. Moreover, Article 64 of the Labor Code expressly prohibits an employer to refuse to employ a woman because of her pregnancy. Second - in workers has a degree in "merchandise." Thus, it is consistent with the requirements of her post. And the fact that she worked as an employee of another and in combination, does not matter. Since the Labor Code allows workers to enter into several contracts to work part-time. Third - the fact that the earlier an individual entrepreneur was not the head office store is not evidence of the fictitious nature of the employment. In addition, the store was opened shortly before hiring an employee. Fourth - in support of employment workers were provided with copies of staffing; timesheets; settlement and payroll; invoices, confirming the reception of the goods store manager; cashbook. On this basis, the Court held that because the employee is actually performing its duties, the benefit was paid to her legally.
14 march
Determination of the Russian Federation of 13.02.2014 № BAC 808/14

The Supreme Arbitration Court of the Russian Federation in the ruling dated 13.02.2014 № BAC 808/14 concluded that the penalty on the basis of Article 47 of the Federal Law of 24.07.09 № 212-FZ is collected only for non-payment of premiums underestimated the basis for assessment. If their sum is calculated correctly, then there is no reason for the penalty. The essence of the argument is as follows. Organization of the Volgograd region paid correctly calculated premiums overdue. During this representatives of the Pension Fund have fined the company with reference to Article 47 of the Federal Law of 24.07.09 № 212-FZ on insurance premiums (hereinafter - the Law № 212-FZ). Amount of the fine was more than 400 thousand rubles. The Pension Fund believed that the offender may be prosecuted for the mere failure to transfer within the prescribed period of insurance premiums. That is, even including in the case where the amount of the contributions payable, has been calculated correctly. However, the courts of all instances with the position of the Pension Fund did not agree. Justification of the following. Of paragraph 1 of Article 47 of the Law № 212-FZ, it follows that the penalty shall be collected only for non-payment or partial payment of insurance premiums as a result of underestimation of the basis for assessment, otherwise their wrong calculation or other unlawful actions (inaction) of contributors. Consequently, if the payer correctly numbered contributions, but their untimely paid, it can not be held liable. In this case, the premiums for OPS and CBOs have been calculated correctly, the base of the contributions are not understated. Hence, the reason for the penalty for failure to pay correctly calculated premiums not ruled Court. A similar conclusion was reached by the Supreme Arbitration Court in a decision dated 31.05.13 № BAC 3196/13. SAC indicated that the late payment of insurance premiums calculated correctly implies the accrual of penalties, and not a penalty. In this regard, has been recognized as a form of ineffective claim for payment of arrears of premiums (Form 5-FIU), as it provides for a penalty for late execution requirements.
12 march
Resolution of the Federal District of the Moscow 23.01.2014 № A40-12523/2013

Federal District of Moscow in its Resolution of 23.01.2014 № A40-12523 / 2013 came to the conclusion that the injury received by an employee in his return from a business trip (including after the arrival of the train), recognized an accident at work. Therefore, the FSS RF to admit expense of temporary disability benefits. The essence of the argument is as follows. Returning from a business trip, the employee was injured (broken leg). In this case, the accident occurred at the exit of the train (on the platform). The organization paid worker temporary disability benefits and appealed to the FSS to declare the costs of temporary disability. However, representatives of the FSS refused. The main argument - because the injury was received after the arrival of the train, it is not connected with the performance of job duties. The accident was still possible to qualify as insurance, if it occurred during their journey on the transport provided by the employer. But in this situation, transportation for the employee of the station was not provided. The Court noted the following. Article 229 of the Labor Code requires the employer to convene a commission to investigate the accident. That she has the right to qualify the incident as an accident at work or an accident that is not associated with production (Art. 229.2 LC RF). In this case, the Commission recognized that the event occurred on a working day at the time the employee returns from a business trip, and the trauma associated with the performance of the employee job duties. Means for qualifying accident at work as an insurance case is only important that the incident took place during working hours and in connection with the performance of job duties (Article. 3 of the Federal Law of 24.07.98 № 125-FZ "On Compulsory Social Insurance against accidents and occupational diseases "). Consequently, the controversial injury should be classified as an industrial accident, the Court ruled.
5 march
Resolution of the Federal District of the Moscow 03.10.2013, № A40-788836/12

The Regulation of FAS Moscow District on 10.3.2013 (case number A40-788836 / 12) noted that the design of waybills is mandatory for organizations that meet two criteria: performing work in the road transport and are senders and receivers of goods transported by road . Since the company leased vehicles were used as official vehicles, ships reasonably indicate that the design of waybills in this situation is not mandatory.
3 march
Resolution of the Federal District of the Moscow 30.09.2013 city №A40-111374/12-90-558

The Regulation of FAS Moscow District on 30.09.2013 (case number A40-111374 / 12-90-558) with reference to the Decree of the Presidium of the Russian Federation of 25.05.2010 № 15658/09 noted that the taxpayer in support of the arguments of the manifestation they shall be entitled to due diligence to argue in support of contractor selection, bearing in mind that under the terms of business turnover in the implementation of the choice of business entities are assessed not only the conditions of the transaction and their commercial appeal, but also goodwill, the solvency of the counterparty, as well as the risk of default and the provision of their enforcement, the presence of the counterparty necessary resources (capacities, production equipment, skilled personnel) and relevant experience.
26 february
Resolution of the Federal District of the Moscow 25.12.2013 № A40-34818 / 13

The Regulation of FAS Moscow District of 25.12.2013 № A40-34818 / 13 concluded that if the property is purchased for resale, lost (including as a result of the fire), it is customary to deduct the amount of VAT to recover is not necessary. The essence of the dispute. Assessed that the capital tax of VAT in the amount of more than 8 million. Rubles., As that when goods are lost in a fire is not restored before deducting VAT. The conclusion of the tax was based on the following interpretation of the provisions of paragraph 2 of Article 171 of the Tax Code. Deductions are made for the amount of VAT charged when buying goods for transactions deemed to be objects of taxation with this tax. Disposals of property, for reasons not related to the implementation, subject to VAT is not. And since the product is blown, it is no longer satisfied the conditions of paragraph 2 of Article 171 of the Tax Code. Therefore VAT previously received deduction, you need to be restored. A similar position is held by the Ministry of Finance of Russia (for example, a letter from 15.05.08 № 03-07-11 / 194). However, the court upheld the taxpayer. The judges pointed out that the organization has presented evidence that the goods have been destroyed by fire. That evidence began to help the Division of State Fire Supervision, inventory inventory inventory items, report the Chamber of Commerce on the market value of the lost of movable property. In addition, the fact that the fire was not challenged by the tax. The Court noted that the list of grounds for recovery of VAT is exhaustive (cop. 2 p. 3 of Art. 170 of the Tax Code). Such a basis for recovery of VAT as the loss of the goods therein specified. In addition, the Court emphasized that the condition for obtaining VAT deduction by virtue of Article 171 of the Tax Code of the Russian Federation - is the acquisition of goods for resale and perform other operations recognized as objects of taxation, and not the fact of their subsequent implementation. In view of the Court concluded that the tax code does not require the taxpayer to write off the balance of goods in connection with the disposal (destruction) of the goods, to recover VAT on it.
21 february
Resolution of the Federal District of the Moscow 02.10.2013 city №A40-150033 / 12-91-663

The Regulation of FAS Moscow District on 10.2.2013 (case number A40-150033 / 12-91-663) on the issue of imposing penalties on insurers to the Pension Fund of the Russian Federation, the Federal Law of the Russian Federation of 24.07.2009 № 212 - FZ "On insurance premiums ..." the following is noted. Law (p. 6) found that during the consideration of the audit materials (deputy) of the body overseeing the payment of insurance premiums, including, identifies the circumstances precluding a person guilty of an offense or the circumstances mitigating or aggravating responsibility for the offense, . In this case, (1 Article. 44) Law № 212-FZ set unlimited range of circumstances mitigating the liability for an offense that can be recognized as such by a court or regulatory authorities for the payment of insurance premiums, considering the case. Circumstances mitigating or aggravating responsibility for the offense by a court or regulatory authorities for the payment of insurance premiums, considering the case, and taken into account when bringing to this responsibility.
19 february
Resolution of the Federal District of the Moscow 18.09.2013 city №A40-19421 / 13-99-60

Regulation of FAS Moscow District on 18.9.2013 (case number A40-19421 / 13-99-60) noted that the preparation of the trip ticket is mandatory only for trucking companies, so the taxpayer has the right to confirm the legality of write-off of lubricants and other instruments without violating other provisions of the tax legislation in the write-off of gasoline and diesel fuel.
17 february
Resolution of the Federal District of the Moscow 22.08.2013 city №A40-147336 / 12-115-1029

The Regulation of FAS Moscow District on 22.8.2013 (case number A40-147336 / 12-115-1029) noted that the analysis of the rules of Articles 252, 255 and 270 of the Tax Code, it follows that not all payments arising from the performance of obligations by the taxpayer on labor relations, can be attributed to the cost reducing the tax base for income tax. Labour Code does not provide for the payment of compensation (of compensation) in the event of termination of the employment contract by mutual agreement of the labor contract. The law obliges to pay to lay off employees only monetary compensation for unused annual leave (Article. 127 TC RF). Court proceeds from the legal position laid down in the Decree of the Presidium of the Russian Federation of 01.03.2011 № 13018/10, under which payments to employees for referring to the costs accounted for profits tax purposes, should be directly related to the performance of their employees employment duties within the employment relationship. Please note that, for example, in the Letter to the Russian Finance Ministry of ot29.07.2013 № 03-03-06 / 1/30009 noted that the termination of the contract in connection with the dismissal of an employee organization, as well as on other grounds not provided for in Art. 178 TC RF, severance pay, provided labor or collective bargaining agreement, a supplementary agreement to the employment contract, can be accounted for as an expense, reducing the tax base for corporate income tax.
12 february
Resolution of the Federal District of the North-West of 10.12.13 № A56-16143 / 2013

FAS Northwestern District in order dated 10.12.13 № A56-16143 / 2013 came to the conclusion that the fact that the PIT is listed before the employee receives wages, does not mean that the tax has not been paid, and, accordingly, does not is the basis for a fine under Article 123 of the Tax Code for failure to pay tax on the income of individuals. The essence of the argument is as follows. The organization listed the personal income tax in the budget for a couple of days earlier than the salary paid to the employee. Tax authorities considered that the tax in this case is not paid. Basing his opinion that the personal income tax should be withheld from the taxpayer's income when it is actually paid (paragraph. 4 tbsp. 226 of the Tax Code). If the organization is to transfer the tax payment of wages, therefore the personal income tax withheld from the employee's income is not, and at the expense of the organization. Meanwhile, the tax payment at the expense of tax agents are not allowed (n. 9 Art. 226 of the Tax Code). As a result, the tax authorities have imposed a fine on the Organization in accordance with Article 123 of the Tax Code, as well as personal income tax and accrued interest. However, the courts of all instances with the arguments of the tax office did not agree, stating the following. Tax laws effectively prohibited to pay personal income tax at the expense of tax agents (n. 9 Art. 226 of the Tax Code). At the same time, Article 45 of the Tax Code states that a taxpayer is entitled to fulfill the obligation to pay tax in advance. This rule applies to tax agents. The decree of the Presidium of 27.07.2011, № 2105 / 11razyasneno that under the early payment refers to the transfer of the tax in the presence of such duties after tax (reporting) period, when the tax base is formed and determined the amount of tax, but before maturity . The presence or absence of personal income tax arrears should be determined on the basis of primary documents in the context of each physical persons and the dates of payment of wages. In this case, the organization presented the primary documents (statement of earnings, turnover balance sheets, accounts, cards 51, 68.1 and 70), which allow you to check the calculation and deduction of personal income tax for each employee. All documents indicate that the transferred money is tax (PIT). The fact that the tax has been paid prior to the payment of income is not a violation of the tax law and does not indicate a shortage. Consequently, the fine under Article 123 of the Tax Code and penalties in case of early payment of taxes can not be ruled Court.
5 february
Resolution of the Federal Far Eastern District of 23.12.13 № F03-6129 / 2013

The Regulation of FAS Far Eastern District of 23.12.13 № F03-6129 / 2013 concluded that the taxpayer in respect of which audited, the auditors may request the copy of the check for the preparation of objections. But at the same time to provide him with an opportunity to copy the material tax audit, the tax authorities are not required. The essence of the argument is as follows. After testing, the tax authorities sent a copy of the act with the documents confirming the facts of violations of tax laws. The taxpayer decided that was not all audit materials, and addressed to the inspection with a plan to take a picture of the necessary documents. However, the tax authorities refused, citing tax confidentiality (see Art. 32 of the Tax Code) and information security (Art. 6, 16 of the Federal Law of 27.07.06 "On Information, Information Technologies and Protection of Information"). The company required the Court to recognize the wrongful refusal. The company said that some of the documents to verify the inspection received by the date specified in the last invitation to consult the check. Therefore, the refusal of tax inspection in familiarization with the test by photographing deprived the company to get the full amount of information and prepare a reasoned objections to a tax audit. The courts of all instances decided in favor of the tax authorities stating that the inspection has made copies of the documents to the audit report. Moreover, the content of the objections to the act, which introduced the company, does not mean that the taxpayer having difficulty in getting acquainted with the materials inspection. According to the Court, giving the taxpayer the opportunity to familiarize themselves with checking and sending him copies of them complied with the tax authorities of his right.
29 january
Determination of the Russian Federation of 10.10.2013, the №VAS-13490/13

uling dated 10.10.2013, the №VAS-13490/13 concluded the organization may not recover VAT on the implementation of repair at the time of application of the general tax regime, the transition mode USN. In the course of the investigation it was found that the organization using a common system of taxation, to deduct the VAT paid to the contractor as part of the cost of the leased premises made ​​repairs. After some time, the organization moved to the STS mode and it is under this special regimes began to use the renovated premises. According to the fiscal authorities in this case the organization was required to restore the specified VAT. And since, the Organization did not, tax inspectors assessed that her tax, as well as related interest and penalties. The Court noted that, in accordance with subparagraph 2 of paragraph 3 of Article 170 of the Tax Code of the tax, the taxpayer received a deduction for goods (works, services), including the OS and intangible assets, property rights should be restored in the event of further use for transactions that are exempt from VAT. Recovery of the amount subject to tax at the rate previously accepted for deduction, in the case of fixed assets and intangible assets - in the amount proportional to the residual (book) value without revaluation. From the case indicated that the company used the disputed premises as part of the overall tax regime, and after the transition to the USN. However, the rules of the Code does not contain a procedure and technique and recovery of VAT on works used as the implementation of activities on the common system of taxation, and in the future for the application of special tax regimes. The said order is defined in relation to fixed assets - is proportional to the residual (book) value. Thus, the Supreme Arbitration Court of the Russian Federation confirmed that in this case, to recover VAT is not required.
24 january
Resolution of the Federal District of the Moscow 03.10.2013, № A40-78836/12

FAS Moscow District in its Resolution of 10.03.2013 , the number A40-78836/12 came to the conclusion that if the Company rents cars for business purposes with the crew , then to confirm the costs for fuel waybills registration is not required. The Court concluded that in this case to confirm spending enough regulations on the provision of services , which include information on the cost of services provided for each vehicle with a crew and given the cost of fuel and maintenance. The Court pointed out that according to the decision of the Goskomstat 28.111997 № 78 waybill is the primary accounting document for accounting work vehicle and a base for payroll . In this design waybills is mandatory for organizations that meet two criteria : performing work in road transport and non- senders and receivers of goods transported by road . And since in this case the company leased cars were used as official vehicles , then execute waybills there was no need . In addition, drivers of leased vehicles were employees of the lessor. Society they are not salary is not charged , and the cars are not exploited . That is, the travel list was not to issue the Company, as Lessor A vehicle as drivers were its employees.
23 january
Determination of the Presidium of the Russian Federation of 09.05.2013 № VAS-8775/13

Presidium in ruling dated 09.05.2013 , the number VAS-8775/13 in the proceedings before the Court of Arbitration number A67-5123/2012 Tomsk region came to the conclusion that the injury , which he received an employee working in shifts , during the rest period between working shifts, recognized industrial accident . In the present case the courts of three instances sided FSS . However, the SAC in its determination concluded that the lower courts did not consider labor relations in particular rotational basis . According to Article 299 of the Labor Code Watch considered a total period, including the course of work on the subject and time rest between . And as the investigation of accidents are subject to those cases which occurred with employees at work in shifts during the rest between (Article 227 TC RF). Moreover, in the present case, the provisions of the labor contract with the injured employee imputed to him the duty to observe the rules of conduct on the territory of the camp , including during rest between . Consequently, finding itself in the shift worker settlement during this holiday was the performance of his job duties . Means an injury which he received is changing - is industrial accidents . Thus, SAC ordered to reimburse the employer FSS expense of temporary disability benefits in full.
22 january
Judgment of 07.10.2013, the number VAS-14253/13

SAC in the ruling dated 07.10.2013 , the number VAS-14253/13 concluded that for the recognition of payments under voluntary personal insurance workers in the labor costs , in accordance with paragraph 16 of Article 255 of the Tax Code , the duration of such contracts shall be at least one year. The point is this. According to the results of the field audit tax assessed that the Company income tax , fines and penalties . The basis was the fact that the company has taken into account when determining the base for income tax payments under LCA , providing for payment by insurers of medical expenses of insured workers. From the text of the agreement indicated that it comes into force on August 2, 2010 and is valid until July 31, 2011 ( 01.08.2010 falls on a Sunday ) . Addressing the court , the Company appealed to the Regulation of the insurance company , which was awarded a controversial contract . Of them indicated that although the contract is signed and comes into effect from August 2, 2010 , in fact he acted all in August 2010 and the next 11 months , that is, the contract is concluded for one year. However, the Court noted that, based on a literal interpretation of the disputed terms of the insurance contract , in this case the duration of the contract is less than one year . Of its terms does not mean that the will of his hand extended the contract for the entire August 2010 . Since , under Article 425 of the Civil Code on the distribution of contract terms previously arisen relations is possible only by agreement of the parties, which in this case is absent. Takmi , the Court sided with the tax authorities.
17 january
Resolution of the Volga Region of 17.09.2013, the number A12-16526/2011

The Regulation Volga Region of 17.09.2013 , the number A12-16526/2011 concluded that the fact that the invoice seller have their actual rather than legal address, does not deprive the buyer of VAT deduction . The judges noted that in accordance with paragraphs 2 and 3 of paragraph 5 of Article 169 of the Tax Code on the invoice must indicate the name, address and taxpayer identification numbers and the buyer , and the name and address of the consignor and consignee. At the same time, this norm does not specify which of the addresses ( the actual location of the organization or its legal address) must be indicated on the invoice . The Court also took into consideration the fact that the obligation to produce invoices, giving rise to the application of the tax deduction buyer of goods (works, services) and their reflection in the information set out in Article 169 of the Code rests with the seller. In such circumstances , and given the reality of making business transactions and no evidence of bad faith in the actions of the taxpayer , the judges decided that deprive Organization VAT deduction is unlawful.
27 december
Resolution of the Plenum of the Supreme Arbitration Court of 30.07.2013, № 61

Resolution of the Plenum of the Supreme Arbitration Court of 30.07.2013 , the number 61 is brought overview of the practice of disputes related to the validity of the address of the legal entity . Thus , the entity bears the risk of non- legally significant consequences of messages received by its address stated in the register, as well as the risk of not at this address its representative , and such an entity is not entitled to relations with persons in good faith rely on the data about the address of the legal liquidation person to refer to data that is not entered in the said register , as well as the unreliability of the data contained therein ( including improper notice during the proceedings, the court , in a proceeding in a case concerning an administrative offense , etc.) for unless the relevant data entered into liquidation as a result of illegal actions of third parties or otherwise involuntarily legal entity ( § 2 of Art. 51 Civil Code , § § . "in" Section 1, Art . 5 of the Federal Law of 08.08.2001 № 129- FZ).
25 december
Judgment of 14.10.2013, the number VAS-13729/13

Supreme Arbitration Court in its decision of 14.10.2013 , the number VAS-13729/13 determined that if a field tax audit carried out on the territory of the taxpayer , that claimed to represent the documents directly to the inspection is not necessary. In such situations need to notify the tax authorities of readiness to provide them with a package of interest to their documentation. SAC explained his decision by saying that Article 126 of the Tax Code does not contain a peremptory norm , according to which the taxpayer is required to submit the requested documents on the location of the tax authority. Accordingly, to address the question of whether the actions of the audited entity of the offense provisions of Article 93 of the Tax Code should be applied in conjunction with other rules of the tax legislation. In this situation, the documents were claimed by the tax authority in connection with the on-site inspection , the procedure established by Article 89 of the Tax Code . Such inspection shall be conducted on the territory of the taxpayer ( except his lack of ability to provide space ), where the tax authority officials conducting checks , it must be possible to read the documents related to the calculation and payment of taxes. System interpretation of Articles 89 and 93 of the Tax Code allowed the Court to conclude that the documents must be presented at the location of officials carrying out site inspection , that is the place of inspection. In the present case, the company sent a letter to the inspection readiness to submit the required documents . Thus , according to the judges, she has performed its duty to provide the tax authority the timely receipt of such documents . Accordingly, the penalties for late submission of documents under Article 126 of the Tax Code were applied unreasonably.
20 december
Resolution of the Presidium of the Russian Federation of 23.07.2013 № 2852/13

The Decree of the Presidium of the Russian Federation of 23.07.2013, № 2852/13 with reference to Art. 15 Civil Code and Art. 146 of the Tax Code, noted that the lost profits damages as an element of an economic entity is not regarded as an object of the legislator to VAT irrespective of the fact that this kind of compensation of losses associated with the production activity of the taxpayer, as compensation for damages in the form of lost profits is not an operation for the sale of goods (works, services) and should not be included in the VAT base.
13 december
FAS ruling Northwest District from 20.09.2013, the number A66-15138/2012

The Regulation of FAS Northwestern District from 20.09.2013 , the number A66-15138/2012 determined that the mere fact of an employment relationship between the employer and its employees are not a sign that all the payments that have accrued to employees are paid their work. The judges felt that the company is not legally incorporated into the base for insurance premiums lump sum amount on the occasion of anniversaries , allowances for leave for treatment and rest , a lump sum severance upon reaching retirement age . And that the disputed payments not covered by labor contracts and have been produced due to the net profit of the company . With judges classified them as social benefits that do not depend on the labor contribution of employees, complexity, quantity and quality of work and are not systematic . And according to the legal position here in the decree of the Presidium of the Russian Federation of 14.05.2013 , the number 17744/12 , social benefits that are not challenging, not dependent on the skills of workers , complexity, quality, quantity, conditions for carrying out the work itself , are not paid employees ( remuneration for work ) including because not covered by labor contracts . Thus, the Court ruled that these payments are not subject to insurance contributions and not be included in the basis for calculating such.
11 december
Resolution of the Federal District Urals from 20.09.2013, the number A71-15272/2012

The Regulation of FAS Ural district from 20.09.2013 , the number A71-15272/2012 determined that if the tax authority will not find in the desk audit any errors or inconsistencies are not entitled to request additional documents from the taxpayer . As follows from the case, tax inspectors during the desk audit adjusted declaration for income tax are no errors in it was not found. However, they have asked the Company for more information. And in the end came to the conclusion that the company improperly included in the expenses losses on the project service industries and farms - a branch of the society resulted in understatement of tax base income . Court did not examine the question of the legality of the disputed accounting loss. Analyzed the provisions of Article 88 of the Tax Code , the Court concluded that the tax inspectorate non-existent right to seek the company any documents or explanations as errors in reporting have been identified. In addition, in paragraph 7 of Article 88 of the Tax Code expressly states that when conducting a desk audit, the tax authorities have no right to demand from the taxpayer additional information and documents , unless otherwise provided in this Article , or if the submission of such documents together with the tax declaration ( calculation) is not provided by the Code . With regard to the declaration for income tax Code such order is not registered./dd>
6 december
Resolution of the Presidium of the Russian Federation of 23.07.2013 № 784/13

The Decree of the Presidium of the Russian Federation of 23.07.2013 , № 784/13 noted that under the provisions of paragraph 4 of Art . 24 , pp . Section 3, Article 1 . 44, pp . Section 3, Article 1 . NC 45 , the obligation of a tax agent for the transfer tax is considered executed after submission to the bank in order to transfer the budget of the Russian Federation to the appropriate account of the Federal Treasury of funds from a bank account even if it has sufficient cash balance on the payment date . In paragraph 4 of Article 45 of the Tax Code are cases when tax liability is not recognized executed . Among them misdirection OKATO code is not provided as one of the grounds for the recognition of the obligation to pay tax to the budget of the Russian Federation is not executed.
4 december
Resolution of the Presidium of the Russian Federation of 23.07.2013 № 3690/13

The Decree of the Presidium of the Russian Federation of 23.07.2013 , № 3690/13 noted that the provisions of paragraphs . Clause 1, Article 2 . 265 of the Tax Code does not contain any restrictions, other than those set by Article 269 of the Tax Code, to account for tax purposes interest expenses on debt obligations of any kind in activities aimed at generating income . In this standard , as well as in the art. 269 ​​of the Tax Code and no any restrictions for excluding these expenses incurred in connection with the payment of dividends (ie , if the organization has taken a loan (including subsequent to the payment of dividends ), then such interest may be referred to non-operating expenses for tax purposes) . This Regulation contains a reference to the possibility of revising the new circumstances come into judicial acts of arbitration courts with similar factual circumstances.
25 november
Resolution of the Federal District of the Moscow 06.09.2013, № A40-136634/12-140-976

FAS Moscow District in its Resolution of 06.09.2013 , the number A40-136634/12-140-976 concluded that the fact that the Company invests in the optimization and promotion of the site, which is owned by another legal entity , is not to say that that the relevant costs will not be taken into account in the cost -deductible expenses . As follows from the case, tax inspectors find that the Company spent on promotion of another site owned by another entity stated that these costs unreasonably included in operating expenses deductible expenses . Tax authorities did not delve into the essence of what this site contains and how does it apply to the taxpayer . However, the Court saktsentirovat their attention on this . All the courts sided with the company. The court took into account that the main activity of the Company is the trade of vehicles and spare parts . In this sense of direct information , Placing on the disputed site should be that the activity of this site is aimed solely at the sale of vehicles. In addition, the attention of the court was presented and a lease of the site. Thus, the Court stated that the placement of information on the site is directed to the informational impact on potential customers - car buyers. Accordingly, the related promotional activities aimed at the promotion and site optimization, ie the resource through which the applicant attracts potential customers. Moreover, the Court found that the lack of visual indication in advertising or references to the Company , does not contradict the law. Since, according to Article 3 of the Federal Law of 13.03.2006 № 38 -FZ "On Advertising" goods (in this case the applicant cars sold stamps) may be subject to an independent advertising without reference to the manufacturer or seller of the goods.
20 november
Resolution of the Federal District of the Moscow 18.09.2013, № A40-19421/13-99-60

The Regulation of FAS Moscow District in on September 18, 2013 number A40-19421/13-99-60 concluded that the preparation of the trip ticket is mandatory only for trucking companies . And the other company has the right to confirm the legality of cancellation lubricants other documents . As follows from the case , the Company traded new and used vehicles . Expenditure on fuel and used to implement the " test drive " new cars ( test drives potential buyers ) to the Gulf of fuel into the tanks when selling new cars were written off on the basis of monthly write-off acts of consumption . Tax inspection did not agree with the fact that these costs are included in deductible expenses , due to the lack of waybills . In turn, the Court pointed out that the costs for fuel costs are typical for a business that deals Society . They are necessary for its maintenance . So, those costs are economically justified and aimed at generating income. In this subparagraph 5 of paragraph 1 of Article 254 of the Tax Code fuel costs related to material costs . In accordance with paragraph 2 of Article 272 of the Tax Code implementation date shall be the date of such transfer in the production of raw materials - in terms of raw materials accounted for the produced goods (works, services). Thus , the current legislation does not contain any mandatory requirements to validate fuel costs driving assignments.
15 november
Resolution of the Federal Russian North Caucasus region from 27.08.2013 №A53-33602/2012

The Regulation of FAS Russian North Caucasus region on August 27, 2013 number A53-33602/2012 , concluded that cameral tax audit in accordance with paragraph 2 of Article 88 of the Tax Code of the Russian Federation shall be held within three months from the date of submission of the tax by the taxpayer Declaration. Stipulated period specified rate to conduct a desk audit is not preclusive , and it can not be considered a violation of the absolute grounds for invalidating the decision taken on the basis of such a test , but provided non-infringement of the principle of the inadmissibility of excess or limited by the duration of the tax control measures . In considering the case , the Court considered that the decision of the tax inspection , issued on the audit , which lasted more than 2.5 years , should invalidate . According to the Court , tax inspectors violated the principle of non- redundant or not limited to the duration of the tax control measures . Conclusive evidence of the validity of such a long period of the audit the auditors did not provide . Besides Presidium still in Decree of 18.03.2008 № 13084 /07 indicated that "a long period of inspection indicates a violation of the purposes of inspection of the tax administration , which can not be discriminatory , preventing business of the taxpayer ." In this regard, the Court decision tax rendered audit , declared illegal.
13 november
Determination of the Russian Federation of 30.08.2013, the number VAS-11880/13

In the definition of the Russian Federation of 30.08.2013 , the number VAS-11880/13 concluded that regardless of whether the organization is now a motor or not, to verify expenditure on fuel in the waybill must be specified route for service vehicle . The point is this. During a field tax audit Inspectors found false attribution Company for expenses reducing taxable income , the cost of acquisition of petroleum products. Court sided with the tax inspectors , while agreeing that the presented waybills decorated with a violation of the law and did not disclose the contents of a business transaction , in particular, they lack the mileage of the car. In addition, according to the Court , in the absence of waybill information about a specific location can not be judged on the following fact in the organization to use the car for business purposes. Thus, the Company submitted waybills , which was not specified route and mileage , they do not support the implementation of the controversial acquisition costs fuel. So, they can not be the basis for the recognition of the cost of writing off POL as expenses deductible for income tax.
8 november
Resolution of the Federal District of the Moscow 20.08.2013, № A40-43967/10-129-228

The Regulation of FAS Moscow District dated 20.08.2013 , the number A40-43967/10-129-228 concluded that the amount of costs incurred to obtain a bank guarantee provided as security for the counter claim , you can recover from the losing party . As follows from the case, the tax Society attracted to the tax liability by performing assessed additional taxes and penalties. To prevent foreclosure undisputed amounts assessed by the tax authority for the adoption of interim measures by court granted the taxpayer at the suggestion of the court counter-security . Form of counter-security - a bank guarantee Society chose yourself. Remuneration for issuing bank guarantees amounted to about 3.7 million rubles. Later , as the decision was rendered in favor of the company , it was decided that the amount of the Company to recover from the IRS . Initially, the Company received a refusal to meet their requirements in all three courts. Judge proceeded on the basis that the Company on its own initiative to provide a bank guarantee for the adoption of interim measures . This means that such costs are not reasonable and will not be refundable . However Presidium , which considered the case of 10.07.2012 , with such an approach is not agreed. Presidium noted that jurisprudence approach to reimbursement of bank guarantee is not one . Several arbitration courts believes that listed in the CAP RF list of costs is not exhaustive , so the costs of a bank guarantee issued to provide counter-security on the claim shall be reimbursed from the losing party . Presidium stopped on this position. As a result, the case was transferred to a new trial. Consider the matter again in three courts. But this time the courts each time confirmed the right of the Company to the reimbursement of the costs of a bank guarantee in full.
6 november
Resolution of the Federal District of the North Caucasus from 24.07.2013, №A32-1783/2012

The Regulation of FAS North Caucasus region from 24.07.2013 , the number A32-1783/2012 concluded that the taxpayer's right to deduct VAT paid amounts is not dependent on OS posting on account 01 "Fixed Assets" . The Court pointed out that the main factors determining the taxpayer's right to deduct VAT on goods (works , services) , including fixed assets are their production purposes , the actual availability , registration and payment. For the deduction of VAT is an important fact to the posting of goods ( works, services) in accounting. Account, which capitalized goods (works , services) in this case does not matter. In the present case, the Company capitalized equipment for off-balance account . This was the basis for the refusal to deduct VAT . However , the Court accepted the claim of the tax authority in this part unfounded.
30 оctober
FAS ruling the West Siberian District from 05.08.2013, the number A46-29518/2012

The Regulation of FAS West Siberian District from 05.08.2013 , the number A46-29518/2012 concluded that the period during which interim measures are not included in the period for the collection of tax arrears and penalties out of court. The Court referred to the provisions of Article Articles 45-48 , 69, 70 the Tax Code and the Federal Law of 02.10.2007 № 229-FZ "On Enforcement Proceedings ". Analysis of these rules allowed them to conclude that the procedure of enforcement by the tax authority of tax arrears , penalties, fines consists of several interrelated consecutive phases, such as:
  • claim on payment of tax penalties ;
  • delivery no later than 60 days after the expiration of the period of performance requirements for the recovery of arrears solutions through cash collection order and direction to the bank , which opened in the taxpayer's account ;
  • in the absence or insufficiency of funds in the accounts of the taxpayer , as well as the absence of information about the taxpayer's accounts - adjudication of collecting the tax , penalties against the taxpayer's property .
That is the procedure of enforcement by the tax authority of arrears of payments represents the successive stages of a single extra-judicial recovery of arrears , and not separate from each other independent procedures . The Court clarified that the specified 60 -day period for the collection of arrears and penalties out of court does not turn on period during which a decision of the court for an interim measure . Since , in this period there are legal obstacles to the tax authority required to foreclosure actions. This, in particular, set out in paragraph 10 of this Decision SAC dated February 28, 2001 № 5 .
25 оctober
Judgment of 08/22/2013, the number VAS-11298/13

Supreme Arbitration Court in ruling dated 22.08.2013 , the number VAS-11298/13 concluded that the taxpayer , major transactions in the absence of any correspondence and personal meetings , without assessing goodwill counterparty can not be recognized circumspect appropriate choice . Therefore, under such circumstances he received a tax benefit is unfounded. As follows from the case, according to the results of a desk audit corrective VAT returns tax authorities refused to individual entrepreneurs in applying deductions. Basis for accrual of VAT fines and penalties were the findings of a tax in the actions of the taxpayer signs obtain unjustified tax benefit in the relationship with one of its counterparties . In fact, the alleged business transactions with the counterparty are not committed and the individual entrepreneur actions were aimed at unreasonable cost increases and the application of VAT deductions . IFTS , casting doubt on the reality of the considered business transactions with these counterparties , proceeded from the unreliability of the submitted documents and signing them by unidentified persons . Tax authorities found that a suspicious individual entrepreneur contractor lacked the necessary conditions for economic activities , including staff , transport , storage space required for such activities as timber trade . His tax reporting is minimal. And income controversial transactions in it have not been recorded . Analysis of cash flows on its accounts also testified that the normal course of business , he did not keep . At the same time, the individual entrepreneur , this was the main supplier of the counterparty . In favor of the correctness of the decision of the fiscal authorities , according to the Court indicated that the individual entrepreneur is not collected on a minimum data , in particular did not know his phone , the names of its representatives. Under such circumstances, the Court agreed that in this situation, the decision of the tax authorities in the present case for the recognition of obtaining unjustified tax benefit true.
23 оctober
Judgment of 07/29/2013 number VAS-9418/13

Supreme Arbitration Court in ruling dated 29.07.2013 , the number VAS-9418/13 confirmed that the maternity allowance paid in a place as a major work of the insured person or in combination. Eligible for these benefits arise from the insured person working under an employment contract , including part-time or part- time , having the required insurance period , in the case of an insured event (maternity) and in the presence of certificate of incapacity . These benefits are paid to the FSS in the amount of 100 percent of the average wage of the employee ( with the condition limiting the size of the average daily wage set by law) . At the same time, based on the provisions of Articles 282, 284 , Article 285 of the Labor Code of the Russian Federation that pluralist if he has not suspended work on the main site , while working part-time actually working part- time. And this can not be more than four hours a day and a half of the monthly norm of working time within one month . Accordingly, the calculation of benefits and maternity leave should be made from employee wages , the corresponding rate of 0.5.
18 оctober
Resolution of the Federal District of the Moscow 24.07.2013, № A40-110865/12-20-572

Resolution of the Federal District of the Moscow 24.07.2013 (case number A40-110865/12-20-572 ) held invalid assessed additional tax authority tax. Tax authority considered that society wrongly accounted in indirect costs of transport outsourcing excluding the evaluation of stocks shipped but unsold products . The Court noted that the transport costs associated with the delivery of goods to buyers from the warehouses of society , as well as transportation costs for goods sold by the Company from the suppliers directly to the buyer's warehouse company or other persons specified by the buyer as the consignee ( delivery transit ) , in accordance with the provisions of Art. 320 TC RF and accounting policies on accounting (tax ) period has not been allocated , and accounted for in indirect costs. Sponsored public transport services are not expenses for delivery of purchased goods to warehouses society , so they should be distributed in accordance with rules established by Art. 320 Tax Code.
11 оctober
Conclusions of the Presidium of the Russian Federation in a case number A06-9384/2011

Presidium in a case number A06-9384/2011 Arbitration Court of Astrakhan region concluded that the incorrect designation OKATO code in the payment for the transfer of personal income tax can not be considered as the basis for calculating the amounts of fines . Since the violation of the order transferred to the budget does not lead to the formation of the arrears , and in its absence there is no reason for any penalty fees . The dispute follows. Company when transferring personal income tax for a separate division indicated OKATO erroneous value . During a field tax audit this fact was established . Tax inspectors argued that once tax is not entered in the budgets of municipalities on whose territory they were separate divisions , we have the personal income tax arrears . This arrears was eventually settled by the personal income tax overpayments , resulting in another administrative entity . However, the tax inspectors anyway has accrued penalties in the amount of arrears that took the Company to offsetting . The trial court sided with the taxpayer , while the appeal and cassation sided tax inspection .. Courts noted that tax agents having separate units are required to list calculated and withheld personal income tax for its location and the location of each separate division . Since local taxes fell at a later date , the Company had a debt , so the accrual of penalties in this case is justified. Besides the courts referred to the provisions of paragraph 7 of Article 45 of the Tax Code . It says that when it detects an error in the taxpayer registration orders for transfer tax , which caused no failure to transfer the tax to the budget system of the Russian Federation , he is entitled to submit to the tax authority at the place of its registration statement on his mistake , to clarify base membership payment , the tax period , or the status of the payer. However, in this situation the Company with such allegations in the inspection did not appeal . SAC in the ruling dated 24.04.2013 , the number VAS-784/13 identified and a rights-based approach in resolving federal district courts dispute. Separate courts rely on the fact that the obligation to pay tax is not dependent on the correctness of instructions OKATO payment documents and the violation of the order of payment of the tax may not result accruing penalties . According to the Court , with proper indication of the accounts of the Federal Treasury PIT in any case comes to the budget system of the Russian Federation , as a result of which the tax authorities and the Federal Treasury have an opportunity to reallocate budgets between the appropriate amount of tax . Under such circumstances, in order to form a uniform jurisprudence and case was transferred to the Presidium , which eventually took the side of taxpayers.
2 оctober
FAS ruling Northwest District from 04.07.2013, the number A13-5798/2012

The Regulation of FAS Northwestern District from 04.07.2013 , the number A13-5798/2012 noted that the lack of registration of the vehicle does not preclude the application of VAT deduction , since the right to deduct the VAT does not depend on the moment of purchase of the vehicle in the traffic police . In proceedings before the Court pointed out that, in accordance with paragraph 1 of Article 223 of the Civil Code the ownership of the buyer under the contract thing arises from the moment of its transfer , unless otherwise provided by law or contract. By virtue of paragraph 2 of the same article of the Civil Code in cases where the disposition of the property subject to state registration , the right of ownership in the acquirer as of such registration, unless otherwise provided by law. Meanwhile, in accordance with paragraph 1 of Article 15 of the Law of 10 December 1995 № 196- FZ "On the road safety" reg carried out in order of their admission to participate in traffic. And according to the Decree of the Government of the Russian Federation of 12.08.1994 , № 938 vehicle registration with the relevant authorities introduced in order to ensure completeness of their registration. Thus , the registration of the vehicle as movable property is not held in order of occurrence, modification, termination of rights in rem on them , and for the admission of vehicles to participate in traffic and application of technical accounting vehicles in Russia. That is the law does not bind the acquisition or termination of ownership of the vehicles with the moment of state registration. Thus, if all other conditions of the denial of the application of VAT deduction only on the ground that the purchase of the vehicle is not registered, can not be considered legitimate.
25 september
Resolution of the Plenum of the Supreme Arbitration Court of 30.07.2013, № 57

Resolution of the Plenum of the Supreme Arbitration Court of 30.07.2013 , № 57 in order to ensure a uniform approach to the resolution of disputes arising from the application of the first part of the Tax Code, given explanations. Document , inter alia , provides for:
  • statute of limitations for liability for tax offenses referred to in Article 122 of the Tax Code shall be calculated from the day following the end of the tax period during which the said offense was committed . Since the calculation of the tax base and the amount of tax shall be the taxpayer after the end of the tax period , the results of which tax is paid , the statute of limitations , a certain item . 113 of the Tax Code shall be calculated in such a case the next day after the end of the tax period during which the offense was committed in the form of non-payment or partial payment of the tax ( § 15 );
  • of the provisions of Chapter 21 of the Tax Code , including Article 176 , that the application to the specific tax declaration of the value added of the right to a refund of the tax means that the sum of the declaration presented by the taxpayer tax deductions exceeds the total amount of tax imputed to them on items recognized subject to taxation , and that the difference between these amounts shall return (offset ) to the taxpayer. Taking into account the interpretation of the standards quoted interconnected , courts must bear in mind that under the clause 8 of Article . 88 of the Tax Code ( cameral tax audit ) fall not all VAT returns , but only those that involve return (offset ) the taxpayer respective funds (§ 25 );
  • articles 101 and 101.4 of the Tax Code does not contain clauses need to notice any person named only in certain ways , in particular by sending by registered mail with return receipt or delivery of it to the recipient directly . Consequently, the notice of the place and time of these materials can not be considered improper solely on the ground that it was done in some other way ( eg by sending telephone messages , telegrams, facsimile or electronically transmitted via telecommunication channels ) ( paragraph 41 );
  • in the case where the tax authority missed the deadline for write-off of undisputed arrears , penalties , fines, set item 3 of item . 46 of the Tax Code and asks for it in court , this requirement shall be considered on the merits ( paragraph 58 );
  • only a violation of material terms of procedures for handling tax audit materials or materials other tax control measures as provided for in Article 14 . 101 and paragraph 12 of Art. 104.1 of the Tax Code is an independent , absolute grounds of recognition decisions of tax authorities . Therefore, research and evaluation of the taxpayer's other arguments regarding the illegality of such a decision in this case, the court is not carried out (paragraph 73 ).
20 september
Resolution of the Federal District of the Moscow 03.07.2013, № A40-95535/12-90-489

The Regulation of FAS Moscow District dated 03.07.2013 (case number A40-95535/12-90-489) noted that the amount of VAT on goods that were previously adopted for deduction can not be restored due to the loss (shortage) of this product. Grounds and procedures for recovery of VAT are set forth in paragraph 3 of Art. 170 Tax Code, which is a closed list of tax recovery cases.
19 september
Resolution of the Federal District of the Moscow 05.06.2013 number A41-34018/12

The Regulation of FAS Moscow District on 05.06.2013 (Case number A41-34018/12) with reference to Articles 41, 210 and 211 of the Tax Code, as well as the provisions of the Federal Law of 08.02.1998 № 14-FZ "On Limited Liability Companies" noted that before the implementation of party equity stake in the company, the nominal value of which has increased as a result of the capital increase due to the company's property, the taxpayer is no object PIT and therefore there is no obligation to calculate and pay the tax.
18 september
Resolution of the Federal District of the Moscow 15.05.2013, № A40-70553/12-20-392

The Regulation of FAS Moscow District dated 15.05.2013 (case number A40-70553/12-20-392) noted that since the customs brokerage services are a prerequisite for placing goods under the customs regime of exports, and therefore relate to services directly related to the implementation of the export goods, and in accordance with paragraphs. Clause 1, Article 2. 164 TC RF subject to VAT at the rate of 0 percent.
17 september
Resolution of the Federal District of the Moscow 15.04.2013, № A40-70325/12-20-390

The Regulation of FAS Moscow District dated 15.04.2013 (case number A40-70325/12-20-390) noted that if the taxpayer appealed to the Russian Ministry of Finance for clarification of the order of taxation and received a reply, by virtue of paragraphs. 5 § 1 of Art. 32 Tax Code, the tax authorities are obliged to follow such written explanations Russian Finance Ministry on the application of the legislation of the Russian Federation on taxes and fees.
16 september
Resolution of the Federal District of the Moscow 15.04.2013, № A40-70325/12-20-390

The Regulation of FAS Moscow District dated 15.04.2013 (case number A40-70325/12-20-390 ) noted that the established art. 255 list of the Tax Code in labor costs is an open question. An employer may establish additional safeguards in the event of the employee temporary disability , including in connection with pregnancy and childbirth and to include in expenses when calculating the tax base for income tax expenses for bonuses payable to employees prior to the actual earnings due to temporary disability excess of the stated maximum size of the temporary disability benefits.
11 september
Resolution of the Federal District of the Moscow 25.06.2013, № A40-90377/12-107-478

The Regulation of FAS Moscow District dated 25.06.2013 , the number A40-90377/12-107-478 concluded that for failure to book sales in the " counter " tax audit , tax inspectors have the right to prescribe the Company a penalty . The judges justified their opinion Toema that under Article 93.1 of the Tax Code the tax authority official conducting tax inspection shall be entitled to demand from the contractor or to other persons possessing documents ( information) concerning the activities of the taxpayer ( fee payer , tax agent) , these documents (information ) . Discovery of documents (information) concerning the activities of the taxpayer ( fee payer , tax agent ) can also be carried out when considering tax audit materials based on the decision of the head ( deputy head) of the tax authority in the appointment of additional tax control . In turn, Article 129.1 of the Tax Code provides tax prosecution in the case of misuse of non-disclosure (delayed messages ) face information that is under the Code shall disclose to the auditors , in the absence of signs of a tax offense under article 126 of the Tax Code . And in the article 126 of the Tax Code spelled responsibility for failure ( improper evasion ) organization to provide its existing documents provided by the Code , with information about the taxpayer upon request of the tax authority . In the present case within the company refused to submit a counter check -book sales for the IV quarter of 2010 , citing the fact that it is an internal document accounting. However, the tax inspectors felt such a failure is not justified. In this case, the Court sided with the tax office , stating that the book sales , as the accounting register of the applicant , at the same time contains information on business operations of the taxpayer . This means that failure to submit the book to the tax authority constitutes an offense under Article 126 of the Tax Code .
6 september
Resolution of the Federal District of the Moscow 12.04.2013, № A40-150203/10-118-891

The Regulation of FAS Moscow District dated 12.04.2013 (case number A40-150203/10-118-891 ) with reference to the Resolution of the Presidium of the Russian Federation from 16.05.2006 № 14873 /05 noted that , in accordance with paragraph Article 8 . 88 Tax Code, the tax authority has the right to demand from the taxpayer only documents certifying in accordance with Art . 172 TC RF legitimacy of tax deductions. These documents are invoices . These same in the request for production of documents ( detailed explanatory letter analytical report , contracts with contractors , etc.) can not be the subject of a desk tax audit . Desk audit is to identify errors in filing tax returns , the contradictions between the information contained in the documents , ie a countable data validation documents and should not replace a tax inspection. Inspection in the contested decision and the requirements are not indicated for errors in the declarations submitted by the company . In such circumstances, obtaining additional documents contradicts the essence of the desk audit . In this case the Tax Code does not limit the rights of the tax authority for discovery of documents during the desk audit cases only detect errors and inconsistencies in the documents already submitted by the taxpayer .
4 september
Resolution of the Presidium of the Russian Federation of 25.06.2013 № 1001/13

The Decree of the Presidium of the Russian Federation of 25.06.2013 , № 1001/13 with reference to the Resolution of the Presidium of the Russian Federation from 06.07.2010 № 17152 /09 noted that if in the course of a field tax audit tax authority accrued in VAT on gratuitous transfer of goods ( in a particular case - children Christmas gifts to their employees ) based on sub . Clause 1, Article 1 . 146 the Tax Code , the tax inspectorate is obliged , by virtue of paragraph 1 of Art . 173 of the Tax Code to reduce the tax amount on the appropriate tax deductions for the purchase of such goods . The fact that the taxpayer has not exercised his right to tax deductions and not reflected in the composition of their tax return, is not critical . At inspection there are no obstacles to determine the actual size of the tax obligations due to the fact that the calculated amount in arrears , including on the basis of invoices which reflected the amount the sellers of goods tax.
28 аugust
Judgment of 08.07.2013, the number VAS-8379/13

Supreme Arbitration Court in ruling dated 08.07.2013 , the number VAS-8379/13 came to the conclusion that as long as the unified state register of legal entities will not be modified by the change of address registration, formerly the IRS has full the right to appoint its field audit . As follows from the case , the Company filed a tax authority an application for state registration of amendments to the constituent documents of the legal entity , including its location . Upon review of this application and the documents attached thereto tax came to the conclusion that the documents contain false information about the company's new address . And consequently, the corresponding graphs statement on Form F 13001 are considered blank and statement - unrepresented . At the same time , inspectors in one day not only ruled the refusal of state registration of the changes , but also appointed a field audit of the Company. Higher tax authority on the consideration of the complaint and the documents attached thereto ordered the IRS to make changes in the Unified concerning , in particular , new address, registration of the Company . However, while the Company has decided that the decision to hold a field tax audit made ​​by an unauthorized agency. After all, if the tax authorities to make timely information in the register, then only the IRS registration to the new address will have the right to conduct site inspection . However , in this part of the Court stated that, in accordance with paragraph 2 of Article 89 of the Tax Code decision on -site tax inspection shall tax authority at the location of the place of residence or individual. A legal entity is determined by the location of the place of its state registration ( paragraph 2 of Art . 54 CC). In this case , paragraph 4, of the Rules of the Unified State Register of Taxpayers (approved by the Government on February 26, 2004 № 110 ) found that the date of registration of the organization in the tax authority at the location , change the information about it in the registry , etc. is the date of the relevant records in the liquidation . Therefore, if the information about the new address of legal entity registration in the registry is not present, the tax inspection at the new address registration authority to appoint a field audit of the Company has not yet passed.
23 аugust
Determination of the number of 26.056.2013 VAS-7518/13

SAC in the ruling dated 26.056.2013 , the number VAS-7518/13 stated that the submission of information for having flaws and errors that are not misleading information , the responsibility of the Law of 01.04.1996 , № 27 -FZ " On Individual ( personalized) registered in the statutory pension insurance " is not installed. As follows from the case , the FIU Society attracted to liability under paragraph 3 of Article 17 of the Law № 27 -FZ for failure within the prescribed period the information necessary for the implementation of individual (personalized ) accounting for the 3rd quarter 2011 . At the same time, the judge found that the policyholder has presented the " personalized " information in a timely manner . So, in his actions not constitute a sane offense. In this case all of the identified shortcomings and mistakes RDF Company adjusted in the manner prescribed in the Regulations on the procedure for the individual ( personalized) registration data on insured persons , approved by order of the Health Ministry of 14.12.2009 № 987n . The judges also noted that in the reasoning of the contested decision FIU representatives indicate inaccurate representation of the insured " personalized " information , but the RPF did not disclose what their inaccuracy in respect of which employees are represented exactly what information. Additionally, the Company for failure to attract the proper information . And this is a completely different offense.
21 аugust
Ruling of the Constitutional Court of the Russian Federation of 04.06.2013, № 966-O

In the Constitutional Court of the Russian Federation of 04.06.2013 , № 966 -O noted that owing to direct instructions of paragraph 2 of Article 170 of the Tax Code, if a taxpayer carries out both taxable and tax -exempt operations , he is entitled to deduct or to consider in the cost of goods amount " input " tax in the proportion in which they purchased goods are used for the production and sale of goods ( works, services) , operations involving the sale of which is subject to taxation ( exempt) . Thus , within its discretion , direct federal legislator stipulated that the amount " input " tax on these transactions shall be charged to the cost of production and sale of goods ( works, services) , and, accordingly, they reduce other tax - income tax organizations. Since the application of the compensatory mechanism involves maintaining separate accounting taxpayer tax amounts such registration becomes mandatory , including in connection with the operations mentioned.
16 аugust
Determination of 27.06.2013, the number VAS-7506/13

Supreme Arbitration Court in ruling dated 27.06.2013 , the number VAS-7506/13 ruled that irregularities in the registration of sick leave made ​​by the medical establishment , and not society, are disposable and inconsequential nature . And if they subsequently , even after verification, will be eliminated , then the FSS is no reason for refusing to reimburse the employer has made payments for temporary disability . In the present case, the FSS has not taken to offset the costs to society for the payment of insurance coverage for compulsory social insurance in case of temporary disability. The basis for this decision was the fact that there has been a violation of Procedure of issuing medical organizations for sick leave , which was approved by order of the Health Ministry from 01.07.2007 Leaf temporary disability was granted for a period of more than 5 calendar days (6 days ) . In addition, the list of temporary disability of another officer has been extended for 30 days without a decision of the medical commission . So also , in sheets of temporary disability were corrections that have been sealed by medical institutions , but without specifying what they were made to it by the attending physician . In turn, the courts noted that the medical establishment all paperwork errors eliminated . Fact disease (injury) , whereby the loss occurred disability workers confirmed ; sick leave granted within the time limits established by law ; temporary disability benefits paid to the insured person before the day of rehabilitation. In such circumstances, according to the Court , at the FSS are no legal grounds for the failure to offset the disputed expenses.
7 аugust
Determination of the Russian Federation of 19.06.2013, the number VAS-7738/13

In the definition of the Russian Federation of 19.06.2013, the number VAS-7738/13 invalidated the decision of the tax authority of the taxpayer to account in connection with procedural violations committed by tax inspectors. Thus in such a situation, the fiscal authorities can appoint a re-test of the taxpayer. According to the materials of the case, the individual entrepreneur was able to court to challenge the decision of the tax inspection of bringing him to justice for committing a tax offense. The reason was the fact that non-compliance with the tax authority essential terms of procedures for handling tax audit materials. Tax inspectors are not provided with individual entrepreneurs to participate in the process of reviewing the audit materials. After some time, the Federal Tax Service has appointed a check for the same tax and the same period. Referring again to the Court, Individual businessman pointed out that the purpose of re-examination in this case is unacceptable. Individual entrepreneur explained his argument that such a re-inspection may be made only in order to control the activities of tax authorities who carried out the check. However, the Court ruled in favor of tax inspectors, noting that the base and order a re-test of the tax subject to the provisions of paragraph 10 of Article 89 of the Tax Code of the Russian Federation. This audit may be conducted by a higher tax authority in order to control the activities of inspection, conducted the initial inspection. However, according to the decision of the Constitutional Court of 17.03.2009, № 5-P re-examination is not allowed when there is reason to believe that "the results may conflict with previously established by the court of the facts and evidence available in the case, is not confirmed by the revised terms of installed remedial procedure judicial act. " In this same case, courts all his attention to the violations of the procedural aspects of tax inspectors. That is, the Arbitration Courts are not allowed to assess the evidence and factual circumstances giving rise to additional tax, interest and penalties, as well as the tax office made on the basis of their conclusions. Thus, the Federal Tax Service of the Russian Federation has every right in this part of the control actions of the lower courts.
31 july
Judgment of 15.05.2013, the number VAS-5640/13

The Supreme Arbitration Court of the Russian Federation in the Definition of 15.05.2013, the number VAS-5640/13 issued an opinion that the Company by signing a lease with natural persons, in respect of income in the form of rents recognized as a tax agent for the personal income tax. In the case of non-fiscal agent functions Society must be held accountable under the Article 123 of the Tax Code. In the course of the case and the appellate courts of the first instance court accepted the decision of the tax authority on bringing the company to liability illegal. The courts, the provisions of Articles 226 and 228 of the Tax Code, concluded that society is not a tax agent in relation to the individuals who received income from commercial contracts. However, the Court of Cassation quashed the lower court acts. After analyzing the provisions of Articles 208, 226 and 228 of the Tax Code of the Russian Federation as a whole and the relationship, the Court concluded that the Company, which is the source of income of natural persons under leases of motor vehicles, a tax agent for personal income tax. And therefore, it had to calculate, withhold and transfer to the budget tax amounts paid to landlords rent. That is, there has been a failure to perform duties of the Company for personal income tax agent, which entails the application of penalties in accordance with Article 123 of the Tax Code of the Russian Federation. SAC is fully shared the position of appeal, refusing to transfer the case to the Presidium.
26 july
Judgment of 14.06.2013, the number VAS-7017/13

The Supreme Arbitration Court Ruling on 14.06.2013, the number VAS-7017/13 issued an opinion that the amounts are paid by the organization to its employees, aimed at a one-day trip instead of per diem are not subject to contributions to social funds. As follows from the case, authorities FIU results of a field validation calculation, full and timely payment of pension and health care contributions attracted the Company to account for the under-base contributions. The reason was the fact that the Company did not pay contributions to the per diem paid to employees who aimed for a day trip. Inspectors RPF claimed that the per diem for one-day trips are not paid. This means that the revenues should be included in the base of contributions to the general procedure. In turn, the Court acknowledged that the per diem dispatched employees legislation led to the employee's residence outside the place of residence for more than 24 hours. That is paid in the present case amounts are not daily, by the definition contained in labor legislation. However, in the opinion of the Court, based on the direction and content of these economic benefits they may be recognized as reimbursement of other costs associated with business trips, which are produced with the permission or knowledge of the employer. In other words, the money (called daily) paid by the Company to its employees under their direction on official business for a period of one day, represent a recovery of a fixed amount of expenses the employee caused by the need to perform work functions outside the place of permanent employment. And because these amounts of insurance premiums should not be taxed.
24 july
Resolution of the Federal Western Siberian region of 17.05.2013, the number A45-24613/2012

FAS West Siberian District in its decision of 17.05.2013, the number A45-24613/2012 determined that the mere existence of an employment relationship between the employer and its employees are not a sign that all the payments that have accrued to employees are paid their work. As follows from the case, the Office of the RPF in the Leninsky district of Novosibirsk accused the company of understating base on insurance premiums. According to inspectors FIU Society wrongfully excluded from the calculation of the amount of compensation for the value of vouchers to the children's camp, received two company employees, as well as financial assistance paid to a staff member in connection with the anniversary. In turn, the Court noted that, under Article 129 of the Labor Code wage (wage worker) - a reward for work, depending on the employee's qualifications, complexity, quantity, quality and condition of the work. This includes compensation (bonuses and allowances compensatory nature, including for work in that deviate from normal, work in special climatic conditions and in areas affected by radioactive contamination, and other payments compensatory nature) and incentive payments (bonuses and allowances stimulating character, bonuses and other incentive payments). Meanwhile, in the opinion of the Court, in this particular case, the disputed payments were not challenging, not dependent on the skills, complexity, quality, quantity and conditions of the job, are not recognized by the compensation of employees (wages), including because they do not provided employment contracts. And so there is no reason for them to be included in the basis for calculating insurance premiums.
17 july
Resolution of the Federal District of the North-West of 23.05.2013, the number A13-3080/2012

The Regulation of FAS Northwestern District on 23.05.2013, the number A13-3080/2012 noted that the penalties for failure to provide the tax authorities of documents with which they have previously learned under a desk or field audit, are illegal. At the same time, in the proceedings before the judge came to the conclusion that in this case it does not matter the fact that the documents were submitted by the Company to the tax authority to 01.01.2010, at paragraph 5 of Article 93 of the Tax Code applies to legal relations arising after dates. The court explained its decision by saying that according to paragraph 1 of Article 93 of the Tax Code of the Russian Federation the tax authority conducting the inspection shall be entitled to demand from the audited entity to provide documents necessary. Refusal to provide documents or failure to submit a tax offense and shall be liable under Article 126 of the Code (paragraph 4 of Art. 93 of the Tax Code). Meanwhile, paragraph 5 of Article 93 of the Tax Code of the Russian Federation stipulates that during the audit, other measures of tax control inspectors are not entitled to request the taxpayer documents previously submitted to them by the tax authorities during the off-site or on-site tax audits. The judges noted that this rule has exceptions. Thus, the repeated request of documents admissible in the case when a previously submitted to the inspection of the originals, which were returned to the taxpayer, or where the documents submitted to the tax authorities to have been lost as a result of force majeure. Since in this situation the tax authorities was not presented evidence of such exceptional circumstances, the Court concluded that in this case the absence of the offense under article 126 of the Code.
12 july
Resolution of the Federal District of the Moscow 09.04.2013, the number A41-32526/12

The Regulation of FAS Moscow District on 09.04.2013, the (case number A41-32526/12) noted that if the taxpayer had filed an invoice for transactions exempt from taxation by virtue of Art. 149 of the Tax Code, is subject to other conditions, such VAT amounts can be accepted for tax deduction. The obligation to pay VAT to the budget, by virtue of paragraph 5 of article. 173 of the Tax Code, lies with the seller, put the invoice.
10 july
The decision of the RF from 31.05.2013, the number VAS-3196/13

The Decision of the Russian Federation of 31.05.2013, the number VAS-3196/13 noted that liability under Art. 47 of the Federal Law № 212-FZ "On the insurance premiums to the Pension Fund of the Russian Federation ..." applies only in the case of under-base for the calculation of insurance premiums, other incorrect calculation of insurance premiums or other unlawful actions (inaction) of taxpayers, which caused non-payment or underpayment payment of the amounts of premiums. In the case of non-payment or partial payment of insurance premiums in the absence of fact understating the base for calculation of insurance premiums, other incorrect calculation of insurance premiums or other unlawful actions (inaction) of liability under this Article shall not apply. However, in accordance with Art. 25 of the Act the payer of contributions accrued interest.
25 june
Resolution of the Federal Central District on 16.05.2013, the number A36-4259/2012

The Regulation of FAS Central District of 16.05.2013, the number A36-4259/2012 determined that the lessee has the right to take into account the cost of repairing the leased property, especially as the financial lease agreement provided that he carries out repair and overhaul of leased . As follows from the case, the fiscal authorities on the basis of field inspection assessed that the public income tax and property tax, and the corresponding amounts of fines and penalties. Tax officials felt that the company overstated in other expenses the cost of repairing the leased property - were purchased and replaced by electric motors and grapples. Tax officials felt that the named entities were to be considered as fixed assets. Accordingly, they should write off the cost through depreciation mechanism, and at the same time to include it in the base of the property tax. However, the Court sided with the taxpayer. The Court pointed out that these objects do not possess features of the asset. Installation of electric motors and controversial grabs for the equipment produced in the course of the repair work, as evidenced by the relevant regulations of the accident, acts of the write-off in the production of inventories. Replacement of these parts has not changed either technical or industrial purposes such fixed assets. In addition, based on the type of activity carried out by the company, the functional purpose of the equipment purchased, it can not be used alone. At the same time, by virtue of paragraph 1 of Article 260 of the Tax Code the cost of repairing the OS, a taxpayer shall be considered as other costs, and are recognized for tax purposes in the reporting (tax) period in which they were incurred in the amount of actual costs. The provisions of this rule shall also apply to the tenant costs of depreciable assets, unless the contract (agreement) between the lessor and the lessor compensation for these costs are not provided. Basis: Section 2 Article 260 of the Tax Code.
20 june
The findings of the Presidium number A20-3227/2011

The Presidium of the proceedings A20-3227/2011 number of the Arbitration Court of Kabardino-Balkaria came to the conclusion that the fact that the salary of an employee who has gone on maternity leave, the earnings leader, does not give the right to reduce the FSS size its benefits. Since such is the essence of the dispute. As a result of a desk audit FSS individual entrepreneur refused to refund the benefits and maternity leave paid by one of its employees. Individual entrepreneur gave his colleague 138 thousand rubles., And FSS reimbursed him only 45 thousand rubles. "Aimed at illegal acquisition at the expense of the FSS benefits for pregnancy and childbirth in Oversize, by raising salaries to the insured person before the coming holidays Pregnancy and childbirth. " The evidence for this conclusion was that the salary of the employee salary exceeds the head three times. The judges in the Supreme Definition from 13.02.2013, the number VAS-16549/12 noted the following. By virtue of Articles 132 and 135 of the Labour Code of the Russian Federation to establish the employee salary is the exclusive powers of the employer. In the present case, the salary was set employee not only long before the occurrence of the insured event, but even before the onset of her pregnancy. By calculating the benefit from a reduced three times the salary of the employee, the FSS actually acknowledged the existence of real employment relationship between the individual entrepreneur and his collaborators. In addition, such a big difference in the salary the employee and the head was due to the fact that the latter is in agreement with the individual entrepreneur worked every day. In such circumstances, the judges SAC held that the arguments of the FSS to create an artificial situation to increase the salaries of the staff member, to the larger benefits are not justified. The Presidium of the Russian Federation agreed with this conclusion.
14 june
Resolution of the Federal District of the Moscow 27.03.2013 till number A40-61548/12-90-349

The Regulation of FAS Moscow District dated 27.03.2013 on case number A40-61548/12-90-349 defined the circumstances under which the cost of car parking can be taken into account for tax purposes, and not to impose their personal income tax. The essence of the case is as follows. Fiscal authorities presented a claim for payment of the parking lot the CEO and the chief accountant of the company. Tax officials justified their decision by saying that these costs are not economically justified, since such costs are not aimed at making a profit. And because of the payment by the Company of costs of physical persons parking fees for private vehicles are recognized his income received in kind and are subject to personal income tax. Judges are reminded that, in accordance with paragraph 1 of Article 252 of the Tax Code of the Russian Federation recognized costs reasonable and documented expenses. The main thing is that they were made to carry out activities aimed at generating income. Under the reasonable expenses mean economically justified costs, the assessment of which is expressed in monetary terms. In turn, documented expenses are recognized, documented, drawn up in accordance with the legislation of the Russian Federation. In the present case, the fact of the size and cost of the parking lot have been recorded in the relevant source documents. The Court, having considered all aspects of the case acknowledged that these costs of economically justified. Since the Organization has been proven that these parking spaces are used, in particular, and as a guest parking for both permanent and for potential contractors society. In addition, the Court concluded that under these circumstances include a fee for parking in the taxable personal income tax revenue the CEO and the chief accountant of the wrongfully.
11 june
Resolution of the Federal East-Siberian region of 09.04.2013, the number A19-16467/2012

The Regulation of FAS East-Siberian region of 09.04.2013, the number A19-16467/2012 noted that the subsidiary is not considered as a participant in tax relations. He does not have the status of a taxpayer or tax agent and other parties liable. Accordingly, the responsibility for the fulfillment of all obligations to pay taxes, fees, fines and penalties shall be a legal person, which includes one or another branch of the intruder (representation). Consequently, the fiscal authorities can not be blamed for an offense separate division or branch. In addition, the court case the judge allowed the benefit of a tax agent for personal income tax (the Organization) and another controversial situation. The issue is. Organization certificates drawn up in the form of 2-PIT, filled the wrong section of the document "sign" (instead of - "1" (information on income) is set to - "2" (the inability to withhold tax). Fiscal bodies found in the structure of the tax offense under paragraph 1 of Article 126 of the Tax Code, as follows: "Failure by the due date to the tax authority the information on Form 2-PIT (with sign 1)." The fact that, according to paragraph 5 of Section II of Annex to the Order of the Federal Tax Service from November 17, 2010 @ MMV-7-3/611 number in the header information in the "sign" the figure "1" - if it is submitted in accordance with paragraph 2 of Article 230 of the Code, and the number "2" - on completion certificate in accordance with paragraph 5 of Article 226 of the Code. In this case, these standards are set and different deadlines for submitting the report. Thus, until the end of January following the tax period, the need to provide a certificate to sign a "1" indicating therein only the total amount of income from which income tax has not been withheld, and no amount of tax withheld. In turn, help with the sign "1" is supplied by 1 April of the same year, reflects the amount of income received by the employee during the tax period, the tax base, which can count the tax amount calculated, withheld, the above, and do not unduly withheld withheld fiscal agent of the tax. On this basis, the tax authorities have decided that since there is no reference to the sign "1", it means that the tax agent has not reported on the tax deducted. Meanwhile, the judge did not agree with such a hasty conclusion. They found that the disputed information, which indicated a sign of "2" and contained all the necessary information to be specified in the certificate form 2-PIT with a sign "1". In such circumstances, the Court considers incorrect specification attribute value can not be considered as a bug.
5 june
The findings of the Presidium of the Russian Federation № A56-47243/2011

The Presidium of the Russian Federation on the basis of the case number A56-47243/2011 Arbitration Court of St. Petersburg and the Leningrad region came to the conclusion that the services provided to holders of debit cards for keeping in your account a certain balance, are compensatory in nature, and therefore, income taxable personal income tax, from the card holder does not arise. As follows from the case, according to the terms of issue of debit cards holders, who had an average monthly balance in the accounts at the bank in the amount of not less than 1.3 mln. Were eligible to receive services business lounges at airports. And these services, the cost of which ranged from 610 to 1040 rubles, paid the bank. These circumstances, according to the fiscal authorities, according to the receipt of individuals - clients of the bank's income in kind, which, by virtue of Article 210 of the Tax Code of the Russian Federation is included in the base for personal income tax. Thus, the credit institution has not fulfilled its duties fiscal agent, for which he was, in fact, attracted to the tax liability. Courts of first instance and appeal considered that cardholders no income in kind. At the appeal court sided with the fiscal authorities, saying that once business lounges obtained gratis, that is economic benefit. In a statement filed in the Supreme Arbitration Court, the representatives of the bank proved that potential revenue from the contribution from which customers are abandoned in favor of payment services in the business lounges of airports, would have given them the opportunity to visit these facilities at its own expense a few times a month. According to representatives of the bank, the material benefit could be determined as the excess of the cost of services received by individuals over the regulations that are in the tax code to determine the taxable amounts arising from the receipt of interest income. However, such circumstances the tax authorities in the course of on-site inspection is not installed. SAC in the Definition of January 21, 2013 number VAS-13986/12 noted that this issue is necessary to ensure uniformity in the interpretation and application of the arbitration courts of law. Presidium eventually sided with the taxpayer.
31 may
Determination of the Russian Federation of 03.04.2013, the number VAS-3550/13

In the definition of the Russian Federation of 03.04.2013, the number VAS-3550/13 concluded that during the period of leave to care for a child under one and a half years of an individual entrepreneur does not have to pay for itself contributions to social funds. At the same time, this statement is true not only with respect to cases that occurred from 01.01.2013, but also accomplished in earlier periods. As follows from the case, representatives of the RPF assessed that an individual entrepreneur (the mother), contributions for the period in which she was on leave to care for a child under one and a half years. Representatives of the FIU indicated that the Law of 24.07.2009, № 212-FZ, does not give any benefits to individuals-entrepreneurs in contributions during the period when on maternity leave, as well as the time of care for a child under one and a half years. In turn, the Court turned to the provisions of Articles 10 and 11 of the Law of 29.11.2010 № 326-FZ. These norms established that the individual entrepreneur, while on leave to care for a child under the age of three years old, belongs to the category of non-working population, whose fees are paid executive authority of the Russian Federation, the authorized senior executive authorities of the regions and other organizations defined government. Accordingly, this category of non-working population is self insurance premiums should not enumerate. According to the Court, at the relevant time, the individual entrepreneur, and there was no obligation to make contributions to the Pension Fund, because it carries on business in connection with the finding on parental leave until the child reaches the age of one and a half years. SAC stated that the decision taken by the courts, consistent with the legal position of the Constitutional Court set out in the Definition of 12.05.2005 № 182-O. And there are no grounds for referring the case to the Presidium of the judges have found.
29 may
Resolution of the Federal District of the Moscow 09.04.2013, the number A41-32526/12

The Regulation of FAS Moscow District on 09.04.2013, the number A41-32526/12 concluded that the organization has the right to deduct VAT, highlighted in the invoice, even if the operation is not subject to this tax. As follows from the case, the company acquired intangible asset under a contract of alienation of the exclusive right. Highlighted in the invoice amount of VAT to be deducted Society revealed. However, the fiscal authorities considered that by virtue of subparagraph 26 of paragraph 2 of Article 149 of the Code, such an operation is not subject to VAT (tax exempt). And therefore, the Company has the right to deduct VAT, although it is indicated in the invoice. In turn, the Court noted that the reasons for the inclusion in the tax deduction amounts "input" VAT include: the introduction of the goods (works, services), as well as the property rights to the account with the appropriate source documents, the purchase of goods (works, services), and and property rights for the operations covered by the imposition of value added tax, or for resale; presentation of the invoice, drawn up in accordance with the provisions of paragraphs 5 and 6 of Article 169 of the Tax Code of the Russian Federation. In this case, the seller filed a society VAT Invoicing. The Company has adopted the acquired intangible assets on the account and used it in an activity subject to VAT. According to the Court, in this case, all the conditions for the application of VAT deduction made. In addition, pursuant to paragraph 5 of Article 173 of the Tax Code, taxpayers, in particular, asking for the sale of goods (works, services), operations which are not taxable, calculate and pay VAT in the case of putting their customers invoices with the release of the tax. That is, the seller listed the VAT to the budget, and the buyer has to deduct VAT, which is consistent with legal requirements.
24 may
Determination of the Supreme Arbitration Court of the Russian Federation of 18.03.2013, the number VAS-2766/13

The Supreme Arbitration Court Ruling on 18.03.2013, the number VAS-2766/13 came to the conclusion that the FIU has the right to prescribe the insured penalties for untrue information necessary for the implementation of the individual (personal) account in the OPS system, only on the the grounds that the discrepancies were found in the "peach" and the calculation of pension contributions. The court based its conclusion as follows. The responsibility for the failure to submit the personalized reporting, as well as for the submission of incomplete and inaccurate information provided by Part 3 of Article 17 of the Law of 1 April 1996 № 27-FZ. According to this norm to policyholders, violators will be fined in the form of a collection of 10 percent of payments due to the FIU, respectively for the period and for the preceding calendar year. Recovery of this amount by organs of the FIU in court. In the present case, the Court found that the withdrawal of the unreliability of individual information is based only on the comparison of the size of the RPF authorities accrued premiums referred to in Form ADV-6-2 and RSV-1. At the same time, the Court pointed out that such differences do not in themselves are evidence of the unreliability of the information provided by the company. Checking the same information provided by the company should be made on the basis of the documents referred to in Article 11 of the Law № 27-FZ. However, the RPF had no such check. However, neither the inspection report, no decision on the prosecution, made up representatives of the RPF, do not contain the specific circumstances of the offense, details of the amounts paid by the insurance premiums, the error committed by the company, and in respect of which workers are inaccurate information. In such circumstances, the Court found that the actions of the insured is not part of the offense alleged against him.
23 may
Determination of the Supreme Arbitration Court of the Russian Federation of 04.04.2013, the number VAS-3786/1

The Supreme Arbitration Court of the Russian Federation in the Definition of 04.04.2013, the number VAS-3786/13 issued an opinion that the cost of travel of staff working in shifts, from the place of residence (collect) to the location of the employer and vice versa, is not included in the basis of assessment extra-budgetary funds. According to the decision of the Supreme Arbitration Court recognized the validity of decisions of lower courts. The judges have analyzed the provisions of paragraph 1 of Article 8 and paragraph "and" paragraph 2 of Part 1 of Article 9 of the Act of July 24, 2009 № 212-FZ, the rules of Articles 5, 15, 164, 297 of the Labor Code and paragraph 2.5 of Part 2 of the Basic Provisions a rotational basis Works approved by the Secretariat of Trade Unions and the Ministry of Health of 31.12.1987, the № 794/33-82. As a result, the Court came to the following conclusion. Controversial payments are compensatory in nature and are associated with the performance of face-work responsibilities, and because the amounts are not subject to insurance contributions. In addition, pursuant to paragraph 12.1 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation delivery costs of staff working in shifts of residence (collect) to the place of work and back are other costs associated with the production and sale, and not to the cost of paying labor. Thus, since the disputed amounts are not part of the wages of workers, they are not recognized as an object of taxation of insurance premiums and can not be included in the basis for their calculation.
22 may
Determination of the Supreme Arbitration Court of the Russian Federation from 25.03.2013. number VAS-608/13

In the definition of the Supreme Arbitration Court of the Russian Federation of 25.03.2013, the number VAS-608/13 concluded that compensation for late payment of wages is not subject to insurance contributions to social funds. According to certain conclusions SAC rejected the supervisory review of case number A60-9536/2012 Arbitration Court of the Sverdlovsk region, upholding the lower court's decision. As follows from the case, representatives of the FIU community assessed that insurance premiums in the amount of compensation paid to employees for late salary payment. According to representatives of the RPF, in this case there is a direct violation of articles 7 and 9 of the Act of July 24, 2009 № 212-FZ. In turn, the Court sided with the insurer, stating that the disputed amounts are compensatory in nature, are the financial responsibility of the employer to the employee shall be made by law irrespective of the conditions of employment and collective agreements. The Court emphasized that the mere existence of an employment relationship between the company and its employees do not assume that all payments accruing to employees are wages and are subject to taxation of insurance premiums.
15 May
Conclusions EAC from 09.04.2013, the number A40-136146/11-107-569

The Presidium of 09.04.2013, with the consideration of the case number A40-136146/11-107-569 Moscow Arbitration Court came to the conclusion that the taxpayer is not entitled to include in the expenses of the amount of VAT paid at their own expense on unconfirmed exports. As follows from the case, the company carried out transactions taxed at a zero rate of VAT. In respect of certain transactions had been unable to collect the documents proving the legitimacy of using "export" tax rate. In this regard, the budget has been paid a tax rate of 18 percent. After three years, ie the period during which it was possible to confirm the application of "zero" VAT paid tax amount was included in income tax expense, prompting claims by the fiscal authorities. The court ruled in favor of tax inspectors, noting that as a general rule, stated in paragraph 19 of Article 270 of the Tax Code of the Russian Federation, to the number of expenses that are not deductible for taxation purposes, are included taxes, charges against the taxpayer in accordance with the Code of the buyer (transferee) of goods ( work, services, property rights), unless otherwise provided by the Code. According to the Court, an exhaustive list of cases where VAT may be added as an expense, provided by paragraph 2 of Article 170 of the Code. However, the controversial case of the named list is not mentioned. Thus, to take into account the VAT on exports can not be unconfirmed. In a statement filed to the Supreme Arbitration Court, the company pointed to the fact that the inspectors erroneously applied the provisions of paragraph 19 of Article 270 of the Code. Since this provision, together with article 171 of the Code defines the rules regarding no "outgoing" and "incoming" VAT. In the present case, the disputed amount of tax not brought anyone. Three judges in determining BAC of 31 January 2013 number VAS-15047/12 noted that on the issue in arbitration practice, there is no uniformity. The Presidium of the decisions of the lower courts upheld, that is ruled in favor of the tax authorities.
30 April
Judgment of 26 March 2013 number VAS-3541/13

The Supreme Arbitration Court Ruling of 26 March 2013 number VAS-3541/13 held that when calculating the length of service required for the calculation of benefits for temporary disability periods of less than 30 days, summed up separately from all of months. Every so obtained are taken for 30 days a month, twelve months of the year are translated in full. The essence of the case is as follows. The procedure for calculating length of service to determine the level of benefits for temporary disability and maternity leave set out in article 16 of the Law of 29 December 2006 № 255-FZ. This provision stipulates that the calculation of pensionable service performed in calendar order. Scoring rules themselves and confirm the length of service in order to calculate temporary disability benefits are contained in the Order of the Health Ministry from 06.02.2007, the number 91. In paragraph 21 of the Regulations states that: "The calculation of periods of work (service activity) produced a calendar based on one-month (30 days) and full year (12 months). In this case, every 30 days, these periods are translated into full months, and every 12 months, these periods are translated into full years. " Society, speaking of one of the parties in this case led first count of the total number of calendar days as a part-time employee from previous jobs, and with this, the result was divided by 30 and each received thus formed 12 months as a full year. The result was that the employee's length of service exceeds five years. Therefore, temporary disability benefits were paid to him on the basis of 80 per cent of average earnings. The Court pointed out that in this case the calculation of pensionable service workers made public in contradiction to the principle enshrined in paragraph 21 of the Rules. In this case, the Court accepted the arguments Social Insurance Fund determined that specified in the order they should be used only in respect of not completely fulfilled months. That is, when a calendar year or a month worked out completely, it is taken into account length of service as a full month. At the same time, according to the calculations if the insurance period the employee is less than five years, the temporary disability benefits be paid on the basis of sixty per cent of the average wage of the worker. On this basis, the Court held that the refusal of the Fund of Social Insurance Company of competition unduly paid aid corresponds to the current legislation.
26 April
Resolution of the Federal District of the Moscow 25.02.2013, the number A40-97017/12-122-469

The Regulation of FAS Moscow District (Case of 25.02.2013, the number A40-97017/12-122-469) noted that if the insurer, which carries out its activities in several types of economic activity, until April 15, did not submit documents required by the Order confirmation of the main the economic activity of the insured under compulsory social insurance against industrial accidents and occupational diseases (Order of the Health Ministry of Russia of 31.01.2006, the number 55), the executive body of the FSS of Russia considers the insured to the type of economic activity, which has the highest class of professional carried them to the risk of economic activities, and before May 1, notify the policyholder of the established since the beginning of this year, the amount of the insurance rate corresponding to this class of professional risk. In this case, the court noted that in determining the insurance rate should be based on the actual face of ongoing economic activity, which should be determined not only by data from the register, but also according to the results of the economic activities of the previous year, which has the largest share in the total volume of output and services rendered, as well as the previously submitted to the insurer.
24 April
Resolution of the Federal District of the Moscow 22.02.2013, the number A41-25781/12

The Regulation of FAS Moscow District (Case of 22.02.2013, the number A41-25781/12) with reference to Art. 78 of the Tax Code and Section 22 Resolution of the Plenum of the RF from 28.02.2001 № 5 noted that the application for the return (offset) of the overpaid tax must be filed within three years from the date on which the taxpayer knew of the fact of the overpaid tax. Since the taxpayer became aware of the overpayment of tax at the time the act of reconciliation, the tax authority had no reason to refuse to refund overpaid tax society.
22 April
Resolution of the Federal District of the Moscow 15.02.2013, the number A40-59278/12-91-332

Resolution of the Federal District of Moscow (case, dated 15.02.2013, the number A40-59278/12-91-332) with reference to Articles 310 and 312 of the Tax Code of the Russian Federation recognized as lawful decision of the tax authority about bringing fiscal agent responsible for the non-transfer of tax on income of foreign companies as at the date of payment of income the Company had no documents confirming the location of the organization in the states with which Russia signed an agreement on avoidance of double taxation.
19 April
Conclusions SAC number A73-15737/2011

The Presidium of the proceedings A73-15737/2011 number of the Arbitration Court of Khabarovsk Krai came to the conclusion that the existence of a counter payables to the same counterparty, for which the number of debt, does not prevent the organization to take into account the amount of data in the formation of allowance for doubtful accounts. In considering the case of three instances courts have sided with the tax authorities. The judges have interpreted the provisions of Article 266 of the Tax Code of the Russian Federation as permitting the recognition of bad debt only if there is a high probability of default. Therefore the existence of the society to offset the possibility of homogeneous monetary obligations unilaterally on the basis of Article 410 of the Civil Code, Civil Code excludes the validity of registration of such amounts in the formation of the reserve. By insisting on the legality of their actions, the Company comes from the fact that, in accordance with paragraph 1 of Article 266 of the Code of doubtful debt is any debt to the taxpayer, which arose in connection with the sale of goods, performance of works, rendering of services, in the event that the debt is not paid in deadline set by the contract, and are not secured by collateral, guarantee, bank guarantee. In addition, the termination of the obligation offset counter claims is a right, not an obligation of the parties. Therefore, this possibility should not entail an automatic adjustment of the reserve, which is formed on the basis of accounting data. In turn, the SAC in Determination of 19.12.2012, the number VAS-13598/12 pointed out that when considering similar disputes the courts rely on the fact that the tax law does not prohibit the inclusion of non-operating expenses in the amounts of provisions in the presence of a counter- accounts payable. The lack of a uniform judicial practice on this issue was the reason for the referral of the case to the Presidium, which ruled in favor of the taxpayer.
17 April
Determination of the Russian Federation of 07.03.2013, the number VAS-1947/13

In the definition of the Russian Federation of 07.03.2013, the number VAS-1947/13 noted that in the absence of the address on your registration, and undelivered aware of his actual whereabouts of the tax authorities, the latter has the right to appoint a field audit to be carried out on their site. As follows from the case, representatives of the tax authorities have decided to conduct a field test at the address that was specified in the Incorporation. However, the Company at the address was missing. Since the information on the existence of other premises of the taxpayer did not have the inspection, the decision was made to conduct on-site inspection of its activities on the territory of the tax authority. The Company has tried to appeal the decision, citing the fact that the inspectors actually deprived of the possibility to exercise his part in the events on-site inspection, to provide the necessary clarifications and documents. However, the Court in this case is not found in the actions of the tax authorities of any violations. According to paragraph 1 of Article 89 of the Tax Code field audit is conducted in the area (indoors) of the taxpayer based on the decision of the head (deputy head) of the tax authority. In this case, this provision provides that if a taxpayer is not possible to provide an office for the site inspection, it can be carried out at the location of the tax authority. SAC decided that if at the time the taxpayer-site inspection did not inform the tax authorities of its physical location, by the same token, he did not leave the tax authorities no choice where to draw the field audit.
12 April
Ruling of 26.02.2013, the number 16593/12

The Decision of 26.02.2013, the EAC number 16593/12 partially recognized as invalid the provisions of paragraphs 5 and 6 of the letter from the Ministry of Finance of 01.06.2012 № 03-07-15/56, as inconsistent with the Tax Code of the Russian Federation. That is, the entity shall not recover the VAT on fixed assets in the event of further use in the manufacture of goods that are sold at a zero rate. And in such situations is not required and calculate the proportion of goods destined for export. SAC justified its decision as follows. According to paragraph 5 of paragraph 3 of Article 170 of the Tax Code of the Russian Federation taxpayer is required to recover VAT, including fixed assets and intangible assets, in the event of further use of the goods (works, services) in operations that are subject to this tax at the rate of 0 percent. The Ministry of Finance of the Russian Federation considered that this provision applies to cases where the fixed assets in whole or in part will shift to the production of goods, the implementation of which is taxed at a zero rate of VAT. Moreover, the Finance Ministry proposed a formula to calculate the amount of VAT to be reconstructed based on the share produced by this equipment aiming to export goods. In turn, the SAC has indicated that, with respect to basic rules set out in subparagraph 5 of paragraph 3 of Article 170 of the Code applies only to the means of labor used in operations for the sale of goods (works, services), are taxable at the rate of 0%. On the fixed assets used by the taxpayer in the production of products (goods), these rules do not apply. Since in the same paragraph 5 is no mention of the main tools used in the production of goods (works, services). SAC disagreed and proposed calculation formula of the Ministry of Finance VAT to be recovered on the fixed assets on the basis of the amount of tax taken to a deduction, in that proportion in which these objects are used in the production and (or) the sale of goods (works, services) taxable at the rate of zero percent. Judges justified by the fact that the Tax Code does not contain provisions that oblige taxpayers to calculate parts (shares) in which the fixed assets used in operations taxed at a zero rate, to determine the tax in proportion and conduct necessary in such cases the separate account.
10 April
Resolution of the Federal District of the Moscow 01.02.2013, the number A40-88834/12-91-481

The Regulation of FAS Moscow District dated 01.02.2013 on case number A40-88834/12-91-481 noted that the Tax Code provides for the possibility of release from liability of the taxpayer for non-payment or underpayment of taxes. However, for this purpose must strictly follow the procedures prescribed by paragraph 4 of Article 81 of the Tax Code of the Russian Federation. According to this norm, the taxpayer will not be penalized if it will identify the violation, will produce conversion payable in respect of a particular tax (reporting) period, the amount of tax can count the penalties for late payment of additional accruals as a result of errors detected amount of the tax shall pay the amount of additionally charged tax and interest in the budget, and after that will make corrections to previously submitted a declaration by the IRS and provide a revised declaration. Violation of this order will result in that the penalties under Article 122 of the Tax Code of the Russian Federation will be charged. As follows from the case, society detect errors that have led to an underestimation of the tax base. In this regard, the tax authority has provided a revised declaration, "but the amount of tax and the corresponding amounts of fines were paid to the budget were not immediately apparent. Therefore, tax inspectors have attracted the society to liability under paragraph 1 of Article 122 of the Tax Code of the Russian Federation, and their actions the Court considered legitimate. The judges referred to the Constitutional Court on June 7, 2001 № 141-O. It pointed out that paragraph 4 of Article 81 of the Tax Code of the Russian Federation envisages the release from liability to the taxpayer filing the application completing and amending the tax return even after the expiry of the tax, but only on condition that, along with the elimination of tax violations, he will pay the remaining amount . In the present case, at the time of submission to the IRS the adjusted tax declaration in the budget was not listed. Thus, a condition which is necessary for the release of the fine, the company failed to comply. The Court in this case sided with the tax authorities At the same time, according to the judges, the argument that self-identification and correction of errors by the taxpayer in the declaration refers to mitigating circumstances is untenable. That is, in the present case, the taxpayer, who himself found and corrected their tax errors, failed not only to achieve the abolition of penalties imposed, but also to reduce their amount.
5 April
Resolution of the Federal District of the Moscow 18.02.2013, the number A40-83540/12-116-180

The Regulation of FAS Moscow District on 18.02.2013, the number A40-83540/12-116-180 noted that the priority display of goods on store shelves is not an advertisement. Consequently, regulation costs for such services in order to calculate the income tax is not refundable. During the proceedings, the Court concluded that the tax agency erroneously attributed the costs of the merchandise to the costs referred to in subparagraph 28 of paragraph 1 of Article 264 of the Tax Code, namely expenses for advertising produced (purchased) and (or) the traded goods ( works, services). The fact that the display of goods is a special arrangement of goods in retail shelves, stands, hinged, checkout the shelves at a retail space in the point of sale. The purpose of the calculations in this case was to draw customers' attention to the product, encouraging the purchase of certain products. This goal is achieved by skillful arrangement of goods at the point of sale (considered a specific area of ​​sales area, the level of the shelves, as well as other factors). At the same time, responses to the merchandise are not advertising activities. Display of goods will be staying at the points of sale of the goods. No additional data, information resulting from the calculations of the buyer does not receive. According to Article 3 of the Law "On Advertising" Advertising - this is the information distributed by any means, in any form or by any means, addressed to the general public and aimed at drawing attention to the subject of advertising, formation or maintenance of interest in him and his promotion to the market. Due to the fact that in this case the disputed costs do not relate to advertising, the requirement of inspection of rationing in order to calculate the income tax was considered illegal by the court.
3 April
Resolution of the Federal Volga District of 22.01.2013, the number A65-27465/2011

The Regulation of FAS Volga District in its decision of 22.01.2013, the number A65-27465/2011 noted that the payment of a one-day official business are not subject to contributions to social funds. As follows from the case, representatives of the Pension Fund insisted that the per diem paid to employees of the company on overnight trips, do not apply to amounts which are not subject to insurance contributions. His position, the representatives of the Pension Fund is based on the fact that the per diem paid only for stays outside the place of residence for more than 24 hours, which means that when the day trips they should not be. Meanwhile, as the organization has decided to allocate appropriate funds to employees for reimbursement of costs of transportation and food, it means that these payments should be assessed in the funds. In turn, the judge noted that the per diem dispatched employees legislation led to the employee's residence outside the place of residence for more than 24 hours. So, in this case the dispute is not daily. However, the disputed payments based on their orientation and economic content may be recognized as reimbursement of other costs associated with business trips made with the permission or knowledge of the employer. And because such amounts may relate to income (economic benefits) of the employee. Consequently, cash (called daily) paid by the Company to its employees under the direction of a one-day trip, represent a recovery of a fixed amount of expenses the employee caused by the need to perform work functions outside the place of permanent employment. Therefore, such payments are not subject to insurance premiums.
27 March
Regulation of FAS Moscow District on 29.01.2013, № A40-60989/11-90-262

The Regulation of FAS Moscow District (Case of 29.01.2013, № A40-60989/11-90-262) with reference to paragraphs. 3, No. 7, Art. 272 of the Tax Code, noted that when considering the possibility of excluding certain expenses for tax purposes must be assumed that the costs are supported by the taxpayer documents. For inclusion on the costs incurred in the cost is the opportunity on the basis of the documents available to make an unambiguous conclusion that the cost of acquisition of goods (works, services) are actually implemented. Links inspection that the applicant CCP has featured company, "phony" (denying his involvement in the organization) can not be a reason to exclude expenses from the costs because, by virtue of the Resolution of the Plenum of the Russian Federation of 12.10.2006 № 53 "Estimate of commercial courts validity taxpayer received a tax benefit", the inspection did not submit evidence showing that the applicant was aware of these facts and made a deal with him, wanting to either consciously avoiding the onset of harmful consequences.
22 March
Regulation of FAS Moscow District on 14.02.2013, № A41-15307/12

The Regulation of FAS Moscow District (Case of 14.02.2013, № A41-15307/12) with reference to paragraphs. 2.1 Section 1, Art. 164 of the Tax Code, noted that the services of freight forwarding, transportation and storage of imported goods into the territory of the Russian Federation are subject to a zero rate of interest applied to them otherwise the bet is unlawful, as brought by VAT at eighteen percent can not be included in the deduction.
Regulation of FAS Moscow District 12.02.2013, № A40-63043/12-91-362

The Regulation of FAS Moscow District (Case of 12.02.2013, № A40-63043/12-91-362) referring to the Decree of the Presidium of the RF from 15.06.2010 № 2217/10 noted that the discrepancy between the dates of receipt of the right to deduct and the actual presentation of the amount of VAT to be deducted is not a violation of the tax legislation in compliance with the three-year limitation period by the taxpayer under paragraph 2 of Art. 173 of the Tax Code
20 March
Regulation of FAS Moscow District on 22.01.2013, № A40-51893/12-99-288

The Regulation of FAS Moscow District (Case of 22.01.2013, № A40-51893/12-99-288) noted that the application of VAT deduction is a right, not an obligation of the taxpayer, and is entitled to use it for any tax period if the grounds and the documents referred to in Articles 171, 172 of the Tax Code.
Decree of the Presidium of the Russian Federation of 11.12.2012, № 10605/12

The Decree of the Presidium of the Russian Federation of 11.12.2012, № 10605/12 pointed out that the mere issuance of sick leave a structural unit of medical institutions, not named in the best of its license, if there are other conditions for citizens to obtain temporary disability, not a ground for the refusal to offset these costs. The negative consequences of non-medical institutions legislation on licensing certain types of activities are assigned directly to the institutions, not the insurer, which, unlike the insurer's right to control the validity of and compliance with the issuance of sick leave is not endowed with medical organizations.
15 March
Judgment of 11.01.2013, № VAS-17754/12

In the Judgment of 11.01.2013, № VAS-17754/12 found that a temporary non-use of assets is not a basis for changing the established order to account for the depreciation of fixed assets accounting. The central issue is this. The basis for the additional taxation on property served as a conclusion about abuse of the tax office accounting payable in determining the advance tax payments worth four production buildings, which were previously accounted for as part of the company assets, and then by the head were transferred to the 41 "Products." For its part, the company considered it unfounded claims of tax inspectors, citing the fact that the disputed assets to be sold, and the goods are not subject to property tax. In turn, the judge turned to the provisions of the Regulations on the application of the accounting plan of financial and economic activities, approved by order of the Ministry of Finance on October 31, 2000 № 94n. This Instruction provides that account 01 "Fixed Assets" is intended to summarize information on the availability and flow of the organization, in-use stock for conservation, in the lease, trust. In turn, by 41 "Products" is needed to summarize the information about the presence and movement of goods and materials purchased as items for sale. Thus, the Court concluded that a necessary condition for classifying assets accounting for 41 is the account of the place of purchase for the purpose of sale. Meanwhile, in the present case, the disputed property as at the time of accounting for, and at the time when changes have signs, paragraph 4, AR 6/01 "Fixed sredstva2. Temporary failure of these assets does not justify a change in the established order of registration and approval to write off the cost of fixed assets accounting. other words, the order established by the legislation of fixed assets does not provide for transfer of assets recorded in the accounting organization as an asset in commodities. Consequently, the arguments of the tax inspectorate on additional public property tax is justified.
7 March
Resolution of the Federal Central District from January 22, 2013 № A54-4428/2012

The Regulation of FAS Central District in its decision of January 22, 2013 № A54-4428/2012 noted that the tax authority can not refuse to state registration at the home address of his only parent, who is the CEO of the newly created LLC. The judges made their conclusion on the basis that the location of the legal entity, including a limited liability company, is the place of its registration (paragraph 2 of Art. 54 CC, paragraph 2 of Art. 4 of the Act of February 8, 1998 . № 14-FZ). The provisions of paragraph 1 of Article 5, paragraph 2 of Article 8 of the Act of August 8, 2001 № 129-FZ stipulates that the state registration at the address specified by the founder. Moreover, the law does not prohibit registration of legal persons by place of residence of its founder. And, in fact, called the conclusion is also mandatory for the Federal Tax Service tax letter from 23.09.2011 № PA-21-6/293. Arbitration Court dismissed the argument of the tax authority to ban the placement in a residential area of ​​legal entities. The court stated that the relevant rules of the housing and civil laws that are referenced auditors do not regulate legal relations on state registration of legal entities, and govern your use of premises. In addition, pursuant to paragraph 2 of Article 17 may be used LCD RF premises for their activities or self-employment of those living there legally citizens if it does not violate the rights and lawful interests of citizens and the requirements to be met by housing . Meanwhile, the use of premises for the state registration of the LLC at the location of its Director General is not to say that the owner has placed in its own private living space enterprise, agency or organization. Nor does it mean that residing in the residential area of ​​the face most certainly will do business. Indeed, the location of the legal entity (place of registration) may not coincide with the actual placement of the property complex and production areas of society. That is, the use of the head of the home address for the registration of the LLC does not violate the rights and lawful interests of citizens and the requirements to be satisfied in the living room. And because of the tax waiver to state registration on the grounds mentioned in the application that address the permanent executive body matches the address of the place of residence of the founder of a legal entity, the judges found to be illegal.
5 March
Regulation of FAS Moscow District on 18.01.2013, № A40-32442/12-129-151

The Regulation of FAS Moscow District on 18.01.2013, № A40-32442/12-129-151 noted that the fact that the company has entered into with a third party service agreement, which could handle it full-time employee does not mean that these costs are not economically justified and feasible. As follows from the case, in the field audit, tax inspectors assessed additional public taxes, fines and penalties, accusing her of getting unjustified tax benefits. Tax authorities seemed suspicious contract for the provision of cleaning services areas, as in the state of society has had positions with similar responsibilities. On this basis, tax authorities concluded that the disputed contract is for the sole purpose to get a tax benefit that under such circumstances can not be considered well-founded. In turn, the Court examined in detail all aspects of attracting outside organizations to conduct this type of work. The Court found that the business transactions were real, the company incurred expenses are documented, are manufacturing and aimed at generating income from really carried on. In this case, the judges considered that the involvement of a third party to carry out cleaning of the premises by the exercise of the applicant during the conclusion of the contract and the scale of construction works without stopping the production and business activities, the need for general cleanups refurbished premises, more work on cleaning though regular number of cleaners was only partially filled. Moreover, the area that served regular employees of the company and contractors have been documented divorced. Thus, the Court held that the argument that there is no tax inspection feasibility and appropriateness of costs is unreasonable.
1 March
Regulation of FAS Moscow District on 22.01.2013, № A40-14262/12-91-71

The Regulation of FAS Moscow District on 22.01.2013, № A40-14262/12-91-71 noted that the duty assessed on the return of interest shall discharge the tax authority, in which the organization is currently in the tax records. The central issue is this. The organization changed its address registration and, as a consequence, has been registered in another tax office. That's where organization and requested a charge and pay interest for late VAT returns, what was the fault of the former tax office. However, the new tax office in which the Organization has been registered refused, citing the fact that the tax authority at the place of registration of the new can not be responsible for the actions of tax authorities, which violated a term of VAT refund. The court stated that the calculation of interest, as well as the public's right to receive the dividends tax is not contested. At the same time, the tax authorities in accordance with Article 30 of the Tax Code of the RF form a single system, then the duty assessed on the return of interest shall discharge the tax authority, in which the organization is currently in the tax records.
27 February
Resolution of the Presidium of 06.11.2012 № 7423/12

The Decree of the Presidium of 06.11.2012 № 7423/12 concluded that the settlement difference incurred by the taxpayer in return of the loan is recognized in non-operating income (expenses), without any restriction. According to the court case is the nature of the dispute. Tax Authority considered that the company improperly understated the base for income tax, is included in the amount of non-operating expenses, which are erroneously classified as foreign exchange gain on debt. Tax inspectors noted that inmates company (borrower) with fizitsami (lender) loan agreements can not be regarded as currency debt. This is due to the fact that all payments between the parties made in rubles, in connection with which arose between the amounts received and returned by borrowing the difference is not recognized foreign exchange gains in the meaning attributed to it by Chapter 25 of the Code. According to tax authorities, in this case, a sum differences. In this case, the negative settlement difference is considered as payment for use of the loan and should be recognized as an expense subject to the restrictions set out in Article 269 of the Code. In turn, according to the Presidium, the restrictions set out in Article 269 of the Tax Code of the Russian Federation for the accounting for interest on debt, do not apply to emerging negative sum differences on principal. Since interest by virtue of paragraph 3 of Article 43 of the Code of the Russian Federation Naklogovogo should be considered only pre-declared income on debt. Accordingly settlement difference arising due to changes in the exchange rate as the difference between the amount of cash in rubles, received and returned on the loan can not be considered interest. Then there is no reason to limit the ability of the taxpayer to include such a difference in the expenses for tax purposes at the time of the termination of the obligation.
22 February
Decree of the Presidium of the Russian Federation of 06.11.2012 № 7423/12

The Decree of the Presidium of the Russian Federation of 06.11.2012 № 7423/12 with reference to Art. 41 Tax Code, noted that since the contractual terms of the loan is established that the monetary obligations of the parties expressed in U.S. dollars (the currency of the debt), the return of a loan to individuals in rubles, equivalent to the amount in U.S. dollars, to individuals - is the amount returned to taxpayers , to which they only get a loan contract amount of U.S. dollars at the exchange rate on the date of return. Thus, there is a positive difference of individuals does not generate economic benefits recognized as income for the purposes of calculating the income tax on individuals.

22 February
Decree of the Presidium of the Russian Federation of 20.11.2012, № 7221/12

The Decree of the Presidium of the Russian Federation of 20.11.2012, № 7221/12 noted that in order to eliminate the uncertainty surrounding the legality of the use taxpayer multiplying factor should assume that the accelerated depreciation of fixed assets in connection with their operation mode is used in increased shift all cases, except machinery and equipment, named in "machinery and equipment" Classifier OK 013-94 as the main means of continuous production. For example, fiber-optic communication lines, cable lines, telecommunications equipment company operated around the clock, but in the classifier OK 013-94 called fixed assets are not listed as the equipment of continuous action. Consequently, the taxpayer to accelerated depreciation may apply up factor, but not greater than 2.

19 February
Regulation of FAS Moscow District on 22.01.2013, № A40-51893/12-99-288

The Regulation of FAS Moscow District (Case of 22.01.2013, № A40-51893/12-99-288) noted that the application of VAT deduction is a right, not an obligation of the taxpayer, and is entitled to use it for any tax period if the grounds and the documents referred to in Articles 171, 172 of the Tax Code.

18 February
Regulation of FAS Moscow District on 22.01.2013, № A40-60377/12-91-338

The Regulation of FAS Moscow District (Case of 22.01.2013, № A40-60377/12-91-338) noted that the payment of the compensation value of quoted workplace, STATUTORY Moscow from 08.04.2009 № 4, is associated with production activities of the society and trudoispolzovaniem workforce that meets the criteria of claims 20 paragraph 1 of Art. 265 and Art. 252 of the Tax Code. Therefore, these costs are included in costs accounted for tax purposes.

15 February
Judgment of January 18, 2013 № VAS-18139/12

In the Judgment of January 18, 2013 № VAS-18139/12 concluded that not all payments are exempt from income tax, should be excluded from the calculation base for insurance premiums to off-budget funds. As follows from the case, the basis for the accrual of the public insurance contributions, interest and penalties were the findings of the Office of Territorial FIU on understating the taxable base in the amount of compensation to the sanatorium permits workers organization purchased under agreements of sale. In turn, the judges examined the provisions of Article 129 of the Labour Code, the Law of 16.07.1999 № 165-FZ "On the basis of compulsory social insurance", Articles 7, 8, 9 of the Law of 24.07.2009, № 212-FZ "On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial funds of obligatory medical insurance. " The court concluded that the disputed amounts are elements of remuneration. The list of benefits that are exempt from contributions to extra-budgetary funds, listed in Article 9 of the Law of 24.07.2009, № 212-FZ. Since, in this norm is not a word about the sanatorium vouchers for employees, with the cost of their workers' compensation should be assessed contributions to the budget funds.

13 February
Resolution of the Federal District of Volga 15.01.2013, № A55-14189/2012

The Regulation of FAS Volga District from 15.01.2013, № A55-14189/2012 noted that the cost of alcohol is subject to all other terms and conditions may be included in the representation expenses. From the case that the tax collectors of the audit assessed additional income tax expense to society. Tax authorities considered that the company wrongfully included in the hospitality costs for the purchase of alcoholic beverages. At the same time, the court found that the disputed expenses incurred in order to establish and maintain co-operation with partners, as well as the expenditure related to the implementation of activities aimed at generating income. At the same time, according to the Tax Code to the Executive, in particular, the cost of the official reception (breakfast, lunch, or other similar events) for contractors, as well as officials of the organization of the taxpayer involved in the negotiations. Refer to the Executive and the cost of transportation support people - delivering them to the place of hospitality and (or) meeting of the governing body and back to the buffet service during the negotiations for the services of interpreters who are not in the state of the taxpayer to provide services during of hospitality. The Court noted that Article 264 of the Tax Code does not contain a specific list of foods and drinks that can not be included in the representation expenses. Because, according to the Court, there is no prohibition to account for tax purposes the cost of alcoholic beverages consumed for a business event.

11 February
Resolution of the Federal North Caucasus region of 20.12.2012, № A53-22520/2011

The Regulation of FAS North Caucasus region of 20.12.2012 in case number A53-22520/2011 noted that the mere fact that unrecognized counterparty society disputed invoices in book sales is not a sign of the unreality of business transactions. The Court recognized that the adoption of the VAT deductible must be met strictly defined conditions. Thus, the goods must be purchased for operations subject to VAT, bringing to account under the relevant source documents. In addition, mandatory to executed in accordance with the provisions of paragraphs 5 and 6 of Article 169 of the Tax Code of the invoice. In this document, the taxpayer must meet the requirements and contain reliable information about the circumstances with which the legislation relates legal consequences. In the present case, the Court found that the disputed transaction with the supplier, the documents linked, correlated, provide accurate information and reflect the real business. A tax inspectors in violation of article 65, paragraph 5 of Article 200 of the APC did not prove bad faith society as a taxpayer and getting them to unjustified tax benefit in the form of reimbursement of the disputed VAT, as well as reflected in the primary documents submitted false information. In such circumstances, according to the judges, tax inspectors concluded that the company may not claim the right to appropriate deductions for VAT, has no legal basis.

8 February
Regulation of FAS Moscow District on 20.12.2012, № A41-17872/11

The Regulation of FAS Moscow District on 20.12.2012, № A41-17872/11 noted that the effect of tax on early payment of VAT to the absence of reason, and the lack of evidence of such advances in previous tax periods demonstrates his dishonesty. In the present case, the organization quickly transferred to the budget of the VAT, but it was done before the end of the relevant tax period. In addition, over time, the bank, which was conducted through the controversial payment, had its license revoked, and the money in the budget has not been received. Tax Authority refused to recognize the duty of the organization fulfilled. The judges acknowledged that, under paragraph 1 of Article 45 of the Tax Code, the taxpayer has the right to advance to fulfill the obligation to pay tax. However, in the opinion of the referee, in this rule refers to the payment of taxes with the appropriate duties after the end of the tax (reporting) period (in other words, when the tax base is shaped and determined the amount of tax payable, but before the statutory period of payment). The court did not deny the fact that, in accordance with paragraph 3 of Article 45 of the Code of the tax payment obligation is fulfilled from the moment of the order to the bank to pay the tax if there is sufficient balance in the account of the taxpayer. However, they believe that this provision applies only to honest taxpayers. That is, in cases of set-off of overpaid tax provisions of the said rules apply to the circumstances characterizing the payer and his care in the discharge of tax obligations. That is, the Court agreed with the tax authorities.

6 February
Judgment of 26.11.2012, № VAS-16165/12

In the Judgment of 26.11.2012, № VAS-16165/12 unfounded claims of the Pension Fund on additional contributions in the amount of the cost of the celebrations. According to the materials of the case, experts FIU decided that society understated the base for the calculation of insurance premiums in the amount of payment for the organization and conduct of a corporate holiday. Accordingly, the personal information provided by the company for the period in respect of the insured persons were regarded as unreliable in terms of the amount of income received and accrued premiums. Courts of first instance and appeal concluded that lack of legal grounds Pension accrual for public insurance premiums, fines and application of justice. The reason is that the cost to the organization of corporate events are not the benefit that form to be determined by material gain at any particular individuals. In the appeal, it was noted that the festivities were organized for the whole team (outside of any connection with the performance of the employees job duties) and by invitation. So, the fact that participation in these activities is not a sign of public employees pay incentive compensation or compensatory nature. So in this case you can not apply the provisions of Article 7 of the Law of July 24, 2009 № 212-FZ, according to which the object of taxation of pension contributions are, in particular, benefits and other remuneration, including "natural", produced as part of employment relations. In turn, the judge in determining the EAC from 26.11.2012, № VAS-16165/12 fully recognized the validity of the conclusions of the lower courts.

1 February
Judgment of November 23, 2012 № VAS-14764/12

In the Judgment of November 23, 2012 № VAS-14764/12 noted that in the case of a taxpayer reduced prices for transactions with related party, in addition to the additional accrual of the related tax and interest, the tax authorities may apply and penalties. As follows from the case, the company challenged in court only a fine. Her representatives insisted that the provisions of the Code does not provide for the possibility of imposing penalties when determining the inspection of "interdependence" of the tax base calculation. For its part, the judge pointed out that the use of the company reduced prices for transactions with related party led to an underestimation of the base for income tax and value added tax. Since these actions constitute an offense, the responsibility for which is set by paragraph 1 of Article 122 of the Code, then the tax authorities had reason to write the offender a fine.

31 january
Regulation of FAS Moscow District on 27.12.2012, № A40-120001/11-20-499 The Regulation of FAS Moscow District Case of 27.12.2012, № A40-120001/11-20-499 noted that the provisions of paragraph 3 of Art. 170 of the Tax Code provides for a comprehensive list of cases where the amount of VAT previously taken for deduction reversed, with writing-off of damaged goods or identified during the inventory, the number of these cases do not apply.
30 january
Regulation of FAS Moscow District on 27.12.2012, № A40-133513/10-129-398

Regulation of FAS Moscow District case from 27.12.2012, № A40-133513/10-129-398 deemed justified the decision of the tax authority in the form of illegal exemption from VAT revenues from operations, formally referred to the relevant paragraph. Three paragraphs. Section 3, Article 2. 149 of the Tax Code (organization, the share capital of which is wholly composed of contributions from public organizations of disabled). Inspection, with reference to the Plenum of the RF from 12.10.2006 № 53 "On an estimate of the validity of arbitration courts of the taxpayer received a tax benefit" to prove that the purpose of engaging the disabled is not their social protection and employment with the creation of appropriate conditions including health directed to that state tax incentives, and obtaining an unjustified tax benefit in the form of illegal exemption from tax revenue.
Regulation of FAS Moscow District on 27.12.2012, № A40-16654/12-20-77

29 january

The Regulation of FAS Moscow District Case of 27.12.2012, № A40-16654/12-20-77 citing AR 19/02, "Accounting for investments," noted that as a result of providing the society with regard to loans and transactions on the sale of shares in the share capital does not arise for the implementation of the operation, there are no transactions that are exempt from VAT, in accordance with paragraph 4 of Art. 170 of the Tax Code the cost of originating loans do not count for 5% of the limit above which the taxpayer is obliged to separate accounting and the adoption of VAT deduction in relevant part.

Regulation of FAS Moscow District on 30.11.2012, № A40-135314/11-107-565

28 january

The Regulation of FAS Moscow District Case of 30.11.2012, № A40-135314/11-107-565, referring to the decision of the RF from 06.07.2010, № 2604/10 noted that the construction of the station. 171 of the Tax Code must be concluded that the established second paragraph of paragraph 7 of the restrictions apply only deduction of VAT paid for the costs of travel and entertainment expenses, which are listed in the first paragraph of this paragraph, and therefore the taxpayer is legally filed to deduct the full amount of VAT for advertising services.

Decree of the Presidium of the Russian Federation of 30.10.2012, № 6909/12

25 january

The Decree of the Presidium of the Russian Federation of 30.10.2012, № 6909/12, with reference to Articles 258 and 259 of the Tax Code, noted that the lack of state registration of rights to fixed assets in connection with the fact that the taxpayer did not exercise the right to timely execution of it in the property can not be considered as a basis for depriving the taxpayer of the right to recognition of expenses related to the creation and (or) the acquisition of the object, through depreciation. If an item of property is reflected as such in the definition of the accounting cost, commissioned and used in the production activity, the deprivation of the rights of the taxpayer accrued depreciation and account for as an expense in the calculation of corporate income tax contradicts the provisions of paragraph 4 of Article . 259 of the Tax Code.

Resolution of the Presidium of 09.10.2012, № 6759/12

23 january

The Decree of the Presidium of 09.10.2012, № 6759/12 noted that the fact that the documents confirming the validity of the zero rate of VAT on the sale of goods for export, have been collected after the company switched to the simplified tax system, not deprives him of the right to declare the tax to be refunded. As follows from the case, the tax inspectors in a given situation refused to reimburse VAT. They explained their decision by the fact that the full set of documents provided for in Article 165 of the Tax Code, the assembled company after changing over to USN. Therefore, the VAT base was set at a time when the company has not payers of this tax. Why, and the reasons for the application of the zero rate of VAT in this case. In turn, the Court recalled that subparagraph 1 of paragraph 1 of Article 164 of the Code for the sale of goods exported under the customs procedure of export, subject to the submission of documents to the tax authorities under Article 165 of the Code, taxation is at a zero rate. On the basis of paragraphs 1 and 2 of paragraph 2 of Article 165, Paragraph 2, Section 9 of Article 167 of the Code, if the 181 th day after the date of placement of goods under the customs regime of export package of documents is not collected, the taxpayer must include the value of sold for export goods in the base of the VAT. The time of its formation is determined from the date of shipment. Accordingly, in this case, calculate the required amount of the tax at the rates specified in paragraphs 2 and 3 of Article 164 of the Code. At the same time, the head 21 of the Code does not limit the right of the taxpayer to provide for 180-day period, the full set of documents to confirm the export. Moreover, in this case, he is guaranteed a VAT refund procedure established by Article 176 of the Code. And because the transition taxpayer for USN is not provided in the Code as a basis for the termination of his right to a refund of VAT on export transactions made during the period of application of the general system of taxation, inspection solution was found to be unlawful.

Regulation of FAS Northwestern District on 04.12.2012, № A66-6809/2011

18 january

The Regulation of FAS Northwestern District on 04.12.2012, № A66-6809/2011 noted that the one-time revaluation of property, the results of which are only needed for a loan, can not affect the tax base of the property.
The point is this. Organization for the purpose of the loan raised by companies, which assessed it owned the building. Tax officials during the inspection, he saw that the residual value of the property is reflected in accounting without this reassessment, blamed society in understating the base for the property tax.
However, the Court came to the conclusion that it is at the tax office had no reason to. The judges pointed out that the commercial organization to determine the frequency of revaluation, the list of groups of similar items, which will be re-evaluated, and the method for determining the current (replacement) cost. The decision is fixed in the financial accounting policies.
In the present case, the assessment of the property was made not for the purpose of accounting and its results have not been approved by the head of the relevant society.
In addition, in accordance with its accounting policy the taxpayer does not exercise revaluation of fixed assets by direct allocation by documented market prices. Furthermore, according to paragraph 15 PBU 6/10 commercial organization if a decision to re-evaluate the assets later to compare their cost with the market on a regular basis. That is, a one-time revaluation of property, the results of which are only needed for a loan, does not affect the tax base of the property.

Regulation of FAS Moscow District on 17.10.2012, № A40-29743/12-140-143

15 january

Regulation of FAS Moscow District on 17.10.2012, № A40-29743/12-140-143, it is determined that the transfer of Christmas gifts to the children of employees subject to VAT.
As follows from the case, the company acquired New Year gifts to send their workers. The fact of awarding employees of these gifts was confirmed acts to write off inventory and records, in which employees sign for their receipt. The judges noted that the purchase and delivery of Christmas gifts to the children of employees carried out as congratulations. That is, in this case, that would not be spelled out in the collective agreement, it does not include the promotion of labor. So, there is a transfer of ownership of gifts for free. Therefore, in accordance with sub-paragraph 1 of paragraph 1 of Article 146 of the Tax Code of the implementation of such an operation is recognized and subject to VAT.

Determination of the Russian Federation of 08.11.2012, № VAS-12510/12

28 december

In the definition of the Russian Federation of 08.11.2012, № VAS-12510/12 noted that the organization is not entitled to demand the return of overpayment of income tax from the moment of which more than three years, and thus has the right to turn on the specified overpayment in non-operating expenses.
The point is this. The organization had an overpayment of income tax, since the emergence of a more than three years. Because in such a situation to return the overpayment from the budget has not been possible, the Organization has included these amounts in non-operating expenses in accordance with paragraph 2 of Article 265 of the Tax Code, with nothing agreed tax inspectors assessed additional tax on that amount for profit.
SAC reminded that, in accordance with paragraph 2 of Article 265 of the Code to tax losses being treated as non-operating expenses can be attributed the amount of bad debts, and the amount of other debts irrecoverable. In this case, pursuant to paragraph 2 of Article 266 of the Code of hopelessness (irrecoverable) acknowledges the debt to the taxpayer, with expired limitation period prescribed, and those debts for which, in accordance with the civil law obligation has terminated due to the inability of its performance, based on the act public authority or liquidation.
According to referees, to Chapter 25 of the Code of overpaid tax in the budget may also be recognized as bad debt. This is due to the fact that this amount is subject to all the constitutional guarantees of property rights due to the fact that the payment of the tax in this case is made in the absence of legal grounds. Thus, the additional charge of income tax in the present case was quashed.

Ruling from 29.11.2012, № 13 840 BAC

26 december

Ruling from 29.11.2012, № 13840 BAC Letter, the Ministry of Finance on 04.04.2012 № 03-03-10/34 (taxation of dividends for prior periods) ruled that the Tax Code. This means that if the organization is no net profit for 2010, it does not mean that the dividends paid out of retained earnings of previous years, subject to an income tax rate of 20 percent.
On 01.01.2011, paragraph 3 of Article 284 of the Tax Law of the act of December 27, 2009 № 368-FZ. Under the new rules for the application of the zero rate of income tax in respect of dividends paid must be followed from three to two conditions — the size and term of the share ownership. The demand on the value of the contribution (not less than 500 million rubles.) Were excluded. In this case, these rules apply to the relations between the taxation of dividends for the organization's performance in 2010 and beyond.
The Finance Ministry of the Russian Federation believed that the organization, which in the absence of the net profit for 2010 be paid to shareholders in 2011, dividends from retained earnings of previous years, there is no basis for applying the tax rate is 0 percent of such proceeds. Moreover, the Finance Ministry recommended to levy such dividends at the rate of 20 percent.
The representatives of SAC indicated that changes made to the Code of the Law № 358, aimed at improving the situation of taxpayers. Because now for the application of the zero rate of income tax should be observed from three to two conditions. In addition, the nature of its economic net income and retained earnings are identical. This eliminates the different tax treatment depending on the period for which the company makes a decision about the direction of the profits to pay dividends.
Thus, the SAC concluded that the interpretation of the Ministry of Finance admitted the contested letter, leading to the formation of new rules of taxation with respect to dividends and changes the procedure for calculating the tax on the distribution of profits earned before 2010, contrary to the provisions of paragraph 3 of Article 284 of the Tax Code and paragraph 2 of Article 5 of the Law № Z68-FL.

Resolution of the Federal District of the North-West of 15.10.2012, № A56-165/2012

21 december

The Regulation of FAS Northwestern District on 15.10.2012, № A56-165/2012 noted that the amount shall be deductible VAT charged suppliers or actually paid by the customs authorities on importation of goods into the territory of the Russian Federation in order to use them in transactions subject to VAT. The point is this. Organization of imported goods to Russia. However, part of the party was not implemented, as the product has been damaged. Despite this importer said deducted the full amount of VAT paid at customs when importing goods into Russia, prompting claims from the tax authorities. Inspectorate claimed that writing off damaged goods, the organization has not implemented, therefore, the right to the deduction it arose. Indeed, in accordance with paragraph 2 of Article 171 of the Tax Code of the VAT deduction only applies in case the imported goods used in activity subject to this tax. The Court indicated that the amount shall be deductible VAT charged suppliers or actually paid by the customs authorities on importation of goods into the territory of the Russian Federation in order to use them in transactions subject to VAT. Besides, the said goods should be taken into account and confirmed by relevant documents and invoices (paragraph 2 of Art. 171 of the Tax Code). Thus, for the deduction of imported goods into the territory of the Russian Federation have a value purchase of goods, taking them to the account, the actual payment, as well as their purpose. Organization of all these conditions. And the fact of the sale of goods as such justify a tax deduction is not. Thus, the refusal to use inspection deduction in respect of damaged goods was considered illegal.

The conclusions of the Presidium

19 december

The Presidium of the proceedings number A40-69427/11-140-302 Moscow Arbitration Court has come to the conclusion that if the results of a desk audit by tax authorities determine that the VAT in the application procedure was improperly reimbursed, in addition to the amount of tax that is transferred the budget will have to be listed and interest for the use of budget funds. And those are awarded regardless of whether the taxpayer had overpaid VAT or not. In the present case the courts of three instances sided with the tax office. They argued that the charging of interest under paragraph 17 of Article 176.1 of the Tax Code, is due to the fact of using taxpayer budget. Links society lack the budget in case of financial loss due to the presence of the overpayment, according to the arbitrators have no legal significance for the proper resolution of this dispute. Since, the accrual of interest due to the possibility of temporary use of illegally obtained budgets. YOU judge in Determination 28.08.2012, № VAS-9334/12 noted that on the issue in the arbitration practice is not uniform. Thus, FAS North Caucasus region in its decision of 27.12.2011 in case number A32-1953/2011 made different conclusions. The judges found that the use of declaratory order tax compensation is designed to stimulate the honest taxpayer legislator and responsible approach to the calculation of the amount of VAT to be recovered in a declarative manner. Therefore, the presence of his overpaid tax in the budget for the period of use of budgetary funds has legal significance. After all, there is one is not causing financial loss on the side of the budget, and therefore the interest on wrongfully reimbursed VAT in this case can not be assessed. However, despite the above definition of the Presidium upheld all verdicts handed down in favor of the tax authority.

Determination of the Supreme Arbitration Court of 19.10.2012, № VAS-10379/12

17 december

In the definition of the Supreme Arbitration Court on October 19, 2012 № VAS-10379/12 noted that even if the tax office at the same time to present a revised declaration for different tax years, it does not mean that the tax authorities are required to check their calendar in order. The result may be a situation that the Organization may be penalized and no debt to the budget As follows from the case, the company has submitted to the tax office updated the VAT return for the five tax periods at a time. In total claimed deductions exceed the tax payable calculated. However, the tax authorities started making desk audits in reverse chronological order. In the last tax declaration on chronology was declared payable. Inspectors did not take into account the presence of overpaid VAT in earlier declarations and made a decision to bring the organization to the tax liability. The court, in turn, referred to the position of the EAC, as set out in its decision of 19.01.2010, № 11822/09. B, which states that the amount of VAT claimed organization a tax deduction can be offset only by the inspection results of the desk audit specified declarations by residues. Date for the revision of three months from the date of submission of returns. Moreover, from the tax legislation does not follow the duty of the tax authority to simultaneously desk audits specified declarations for different tax years, even if they are present at one and the same time. On account of the arrears may only set off the overpayment established at the time of detection of the debt. The court noted that the grounds for exemption from the tax liability of the taxpayer for verification of changes made to them in a tax return, established by Article 81 of the Tax Code. However, the rules of the rule does not provide for the possibility of liberation from the use of tax liability in case of submission of a revised declaration after identifying the inspection tax offense.

Regulation of FAS Moscow District on 22.10.2012, № A41-31823/10

14 december

The Regulation of FAS Moscow District (Case of 22.10.2012, № A41-31823/10) noted that the responsibility for the offense referred to in Art. 126 of the Tax Code, may be used only in the event that the requested documents were available from the taxpayer, and it was a real opportunity to present them in time. Based on sub. 1, No. 1, Art. 111 of the Tax Code circumstances precluding persons guilty of committing a tax offense an act that contains elements of a tax offense as a result of natural disaster or other extraordinary and compelling circumstances (these circumstances are established presence known facts, publications in the mass media and other means, do not require special means of proof). The document confirming the disaster (eg, fire) may be a reference to the fire department of the state fire supervision, as well as the decision not to open a criminal investigation into the fire.

Regulation of FAS Moscow District on 25.10.2012. №A40-13623/12-75-66

12 december

The Regulation of FAS Moscow District on 25.10.2012, the case number A40-13623/12-75-66 noted that the organization is not engaged in transportation of passengers who are not obliged to write off the cost of fuel used roadmap, approved by the Ministry of Transport of 18 September 2008 № 152. In the present case, the judge found that the cost of fuel in the Company records expenses for income tax within the limits (standards) of fuel (summer and winter) for cars, including leased approved by order of the head. Write-offs took place on the basis of reports in which the calculation is carried out according to the norms approved by the order of society. Rate of fuel consumption - is the number of liters per 100 kilometers. Based on the route sheet, which reflects the speedometer reading at the beginning and end of the month, is calculated mileage for the month. Mileage multiplied by the rate and divided by 100 km. It turns out the estimated number of gallons of fuel used per month. Calculated amount is compared to the actual amount of fuel refilled. And if there was less seasoning, all written off liters without a trace. If more - the estimated number of gallons withdrawn by the rules, and all that is over, it remains in the rolling balance to the next month. Research and assess the evidence, the Court concluded that the decision to tax authorities on additional income tax did not comply with tax laws, violates the rights and interests of the applicant in the field of entrepreneurship.

Resolution of the Federal District of the North-West of 01.11.2012 № A42-6467/2011

10 december

The Regulation of FAS Northwestern District from 01.11.2012 № A42-6467/2011 noted that the costs incurred by the appeal decision inspections can not be qualified as damages recoverable under article 15, 16, 1069 of the Civil Code and Articles 21 and 103 of the Tax Code.  The central issue is this. Company out of court appealed the tax authority, stemming from the on-site inspection. To this end, the lawyer was involved. Amount of remuneration paid to him company considered it a loss that can be attributed to the increase in expenses for income tax purposes. However, the judge in the case sided with the tax authority. They recalled that according to paragraph 1 of Article 103 of the Tax Code during the tax audit is not permitted causing undue harm to the audited entities, their representatives or to property in their possession, use or disposal. The tax authorities are responsible for the damages caused by the payers result of unlawful actions. Such damages are recoverable in full, including, including lost profits (item 2. 103 TC). At the same time, if the losses are caused by lawful actions, then they will not be refundable, except as provided by federal law. Meanwhile, as it follows from the case, the officers conducted the inspection tax control measures within the powers set out in Articles 89, 100 and 101 of the Code. These rules govern the procedure of the field audit, execution of its results, the decision. So the cost of attorney's fees are connected with the lawful actions of the tax authorities, which means that they can not be regarded as a loss to the tax authority is obliged to compensate.

Resolution of the Federal District Urals on 25 .10.2012, № F09-9739/12

7 december

The Regulation of FAS Ural District 25 .10.2012, № F09-9739/12 noted that the fact that the employee has worked in the organization before going on leave to care for a child for a short time, is not a ground for refusing the FSS in reimbursement payment of her benefits for pregnancy and childbirth. As follows from the case, on the basis of a desk audit by representatives of FSS recorded facts undue submission for reimbursement from the fund expenditures made in violation of the law. Representatives of the Social Insurance Fund decided that the Organization entered into with the employee fictitious employment contracts with the sole purpose to get money from the FSS. In turn, the Court no illegal "scheme" in this case is not found. The court noted that the fact that real labor relations between the company and the persons who held the post procurement manager and chief accountant, on the basis of labor contracts confirmed the case. The Court found that this wage working women made in accordance with labor contracts and staffing, and the facts insured accidents FSS specialists are not in dispute. In this case, bad faith society, the direction of his actions to receive unjustified tax benefit the Foundation for Social Security is not proven. Meanwhile, on the basis of subparagraph 3 of paragraph 1 of Article 11 of the Act of July 16, 1999 № 165-FZ, insurers have the right not to offset the cost of mandatory social insurance only if they are made in violation of any laws. Otherwise, failure to reimburse aid is illegal.

Regulation of FAS Moscow District on 05.10.2012, № A40-132828/10-90-761

5 december

The Regulation of FAS Moscow District on 05.10.2012, № A40-132828/10-90-761 noted that if the account of the organization received funds, that's no reason to include them in the base of income tax. As follows from the case, on the basis of re-site inspection company tax charged in understating the tax base for unaccounted income and he assessed additional income tax, penalties and the amount of fines. Inspectors referred to the provisions of paragraph 8 of Article 250 of the Tax Code. Under this regulation shall be income Non-operating income in the form of donated property received (works, services), except as provided in Article 251 of the Code. Since the taxpayer has not submitted at the request of the inspection documents justifying the legitimacy of the non-inclusion of the amounts in the tax base, tax authorities regarded them as free of income received. In turn, the Court rejected the argument of the tax, noting that the prosecution has the character of their assumptions. The Court pointed out that, in accordance with paragraph 2 of Article 248 of the Code in order to calculate income tax assets (works, services) or property rights are deemed to be received free of charge, if they are receiving is not associated with the occurrence of the recipient's obligation to transfer the property (property rights) to the transferor ( perform for the transferor work have transferor services). The mere existence of a payment document by which the taxpayer to transfer funds in the absence of other evidence, no evidence of income. After all, money can be transferred on different grounds. In the case there are no documents showing the grounds on which the payment is made. Thus, the tax authority has not proved and the Court found that to the account of the taxpayer funds are the proceeds from the sale of goods, services, or non-operating income, in particular, the acquisition of property without compensation. So, and additional taxes on income in the same situation is unfounded.

Regulation of FAS Moscow District on 17.09.2012, № A41-25479/11

3 december

The Regulation of FAS Moscow District on 17.09.2012, № A41-25479/11 noted that in case of non-tax amounts due to the fault of the bank, subject to the transfer tax amounts by the earlier of its obligation to pay. According to the case file disputed payment was sent to the bank for 9 days before the revocation of his license. And in this case, the organization decided to get out of the budget for the 35 days before the end of the tax period, after which determined the amount of tax to be paid, and for the 4 months prior to the date of payment thereof. Inspectors felt that such actions are not typical of normal business activity. In turn, the judge recognized that, under paragraph 3 of Article 45 of the Tax Code of the availability of sufficient cash balance in the account of the taxpayer on the date of the payment order to the bank for the transfer tax is the basis for recognition of duties performed. Meanwhile, as indicated by the arbitrators, the rule applies to the circumstances characterizing the integrity of the taxpayer for the transfer tax. Including whether the presence of the very obligation to pay tax. And that is what the company and was not in at the time the bank tax "payment obligation." So that tax authorities had reason to doubt the good faith of the taxpayer. That is, early transfer of the tax can be quite a sufficient basis for the recognition of the tax obligations are not fulfilled.

Regulation of FAS Moscow District on September 11, 2012 № A40-119999/11-99-508

23 november

The Regulation of FAS Moscow District on September 11, 2012 № A40-119999/11-99-508 concluded that the organization, which claims a deduction of the VAT can not be punished for the fact that the invoice is not complete boxes "Country of origin" and "Number of the customs declaration." As follows from the case, on the basis of tax collectors office audit of the VAT return to society assessed additional tax and the amount of fines. Grounds for refusal of society to refund VAT served, in particular the findings of the inspection of the unlawful decision to deduct the amount of tax on the basis of an invoice drawn up in violation of paragraphs 13, 14, paragraph 5 of Article 169 of the Tax Code (not filled in the column "Country of origin", " number of the customs declaration "). In turn, the Court found that the submitted documents to the requirements of Articles 169, 171, 172 of the Tax Code, and came to the conclusion on the legality of the company's statement of tax deductions. Tax arguments that were the reason for denial of the application of the tax credit, including the improper execution of the invoice by the Court declared invalid. Since the Company is not a person, putting the invoice, and therefore can not be responsible for its lack of information about the country of origin and number of the customs declaration.

Resolution of the Presidium of the July 17, 2012 № 1098/12

21 november

Principal shall not apply the "vmenenku" if he would send goods to the retail trade in the commission. The conclusion reached by the Presidium of the recently released its decision of July 17, 2012 № 1098/12. It is noteworthy that the courts of appeal and cassation courts sided with the taxpayer. They decided that the transfer of entrepreneurs using "imputed" special regime, goods for implementation of the commission does not create objects of taxation "general" taxes. Indeed, in the final analysis, a merchant receives revenue from the sale of goods to retail customers through the store. Simply he does it with the mediation commission. The Presidium of such an approach is not agreed, pointing out that according to paragraph 12 of Article 346.27 of the Tax Code by retailers understood entrepreneurial activity related to trade in goods on the basis of the retail sale. At the same time, in accordance with Article 990 of the Civil Code on a commission basis, a party (the commission) shall at the request of the other party (the principal) for a fee to make one or more transactions in his own name, but by the principal. Such transactions committed by the commission, are operations for retail sale of goods. In turn, paragraph 1 of Article 492 CC is determined that the contract of sale retail seller engaged in business of selling goods at retail, shall transfer to the buyer the goods intended for personal, family, household or other uses not related to business. Presidium has said that the commission consignor transmission products, for their further implementation in retailing itself does not enter into a legal relationship with the buyers, that is, sales contracts with them, he does not enter. So, in this case the principal shall not be eligible to apply special tax treatment in the form of imputed income from such business. As a result, the Presidium has decided to refer the case for a new trial.

Regulation of FAS Moscow District on 12.09.2012, № A40-12138/12-99-60

16 november

The Regulation of FAS Moscow District on 12.09.2012, № A40-12138/12-99-60 concluded that in some cases the deduction of VAT on advance payments could exceed the amount of tax assessed in implementation. And yet, this fact is no violation of tax laws are not violated. According to the case file: Society with the prepayment of VAT payment on the estimated rate of 18/118. However, the tax authorities refused to reimburse this amount of tax on the grounds that the relevant invoices do not meet the requirements of Article 169 of the Tax Code. Say, if you receive payment, partial payment for the future delivery of goods incorrectly applied the tax rate of 18 percent instead of 10 percent. So the "subtract" the 18 percent - is unlawful. For its part, the Court found that the payment of the VAT has been calculated in an oversized tax rate instead of 18 percent to be applied rate of 10 percent. After the shipment of goods to the counterparty of the Company in accordance with paragraph 8 of Article 171, paragraph 6 of Article 172 of the Tax Code has filed to deduct such amounts of taxes, and also estimated tax payable to the budget, the appropriate rate of 10 percent. That, in the opinion of the arbitrators is sufficient to apply the "advance" a deduction of VAT in full. The arguments of the tax authority of non-compliance invoices requirements of Article 169 of the Tax Court of the Russian Federation has not taken into account, explaining it by the fact that the provisions of paragraph 5 of Article 169 of the Code in this case, the application can not be, as extends to the invoice of the seller in sale of goods (works, services). Controversial as invoices made out by the taxpayer in obtaining payment, partial payment for the future delivery of goods. In this case, the tax has been calculated by the taxpayer in an oversized, that does not prevent the state and the residue at the same rate. The court noted that the recalculation of the amount of tax deduction based on the tax rate of 10 percent, the tax should have been counted and the amount calculated by the applicant to prior payment of tax payable to the budget. A simultaneous decrease in the size of the deduction and the tax assessed by the same amount excludes the assessed taxes. Thus, the refusal to refund the VAT tax and additional taxes were found to be unlawful.

Resolution of the Presidium of 11.09.2012, № 4357/12

14 november

Presidium in its Resolution of 11.092012, № 4357/12, issued on the case number A27-2997/2011 Arbitration Court of the Kemerovo region, decided that a one-day trip with daily employee is not subject to personal income tax. According to the case file, the tax office assessed additional income tax to society, citing the fact that the employer is not the statutory obligation to pay its employees at the direction of their day-to-day business trip, where every assignment is able to return to their place of permanent residence. In this regard, the provision of paragraph 3 of Article 217 of the Tax Code in respect of amounts paid do not apply, and they are subject to personal income tax. The trial court sided with the taxpayer. However, the courts of appeal and cassation acknowledged the correctness of tax. In turn, the Presidium supported the decision of the court is the first instance. YOU agreed that the disputed payments, bearing compensatory made in the prescribed amount, can not be considered income (economic benefits) of the taxpayer - the employee. In this regard, they are not subject to personal income tax. Since the direction of employees on official business at the initiative of the employer and in his interest, and, therefore, per diem payment is in the interest of the employer, not the employee.

Resolution of the Federal District of the North-West of the August 30, 2012 № A52-4152/2011

9 november

The Regulation of FAS Northwestern District on August 30, 2012 № A52-4152/2011 determined that the tax law is established that for the provision of the right to deduct VAT on advance payments, you must have an invoice for pre-payment, the documents confirming its actual transfer and the contract, which includes a provision making the advance. In this case, the right to use the advance VAT deduction does not depend on the delivery schedule As follows from the case, the fiscal authorities had no claims to registration of invoices, offered for the advance. The fact of transfer policies as well as the presence of the contract on the implementation of customer prepayment tax inspectors denied. However, they had a claim of some kind. However, the tax inspectors felt that deduction of VAT due on payment could be claimed by a company only to them within the agreed supplier of supply for the I quarter and April 2011. The court took this argument, because the inspectors did not consider that the transaction between the parties had entered into an additional agreement that provides for a pre-payment by the buyer regardless of the value of the consignment, the harmonization of prices, volumes and delivery schedule. That is, at the time of the business transactions in the contractual obligations of the parties there was no size restriction produced payment. This was done in order to secure a lower price for the goods, the delivery of which will be implemented in the future. The court stated that the taxpayer to the tax authority of all duly executed documents, the legislation on taxes and fees, in order to obtain the tax benefit is the basis for its production (paragraph 1 of the Resolution of the Plenum of October 12, 2006, № 53). Tax inspectors were not able to prove that, for tax purposes, the Company has reflected in the tax accounting operations are in line with their true economic sense. Also, the inspectors were not able to prove the bad faith of the companies and taking actions aimed at obtaining undue tax benefit. Accordingly, the decision of the Tax Inspectorate to refuse the application of VAT deduction on the advance, can not be considered legitimate.

Resolution of the Federal District Volga from August 7, 2012 № A12-542/2012

2 november

Interest for installment payment of municipal property is not included in the basis of the VAT. This conclusion follows from the decision of FAS Volga region from August 7, 2012 № A12-542/2012. The central issue is this. As a result of a desk audit of the VAT return tax inspection found that the employer unreasonably failed to include the tax base interest paid to the seller when buying on credit property located in the municipal treasury. According to the tax inspectors, percentage increase the base for VAT under subparagraph 2 of paragraph 1 of Article 162 of the Tax Code, as they are the amounts related to the payment of the said property. For its part, the Court recalled that, in accordance with paragraph 2 of paragraph 3 of Article 161 of the Tax Code in this case, the tax base is defined as the sum of income from the sale (transfer) of the property subject to tax. In this case, the tax agents shall buyer (receiver) of the assets, except for individuals who are not individual entrepreneurs. Accordingly, at the buyer's responsibility to calculate the design method, to deduct from the income paid and pay to the budget the appropriate amount of tax. What exactly are the amounts in income from the sale (transfer) of the property included in the determination of the tax base for VAT, this regulation does not say. Meanwhile, from the analysis of Article 823 of the Civil Code and Article 153 of the Tax Code, according to the Court, that the disputed interest is the price for a commercial loan, and not the sale of property. In this regard, they are non-operating income and are not subject to VAT.

Regulation of FAS Moscow District on September 5, 2012 № A40-170912/09-112-1373

31 october

Cost of outsourcing can be allowed for tax purposes, provided that  Organization does not have the personnel officer in the state, which is responsible for recruitment. This conclusion follows from the decision of FAS Moscow District on September 5, 2012 in case number A40-170912/09-112-1373. As follows from the case, during the tax audit, the tax inspection took off costs incurred by the company as part of the outsourcing agreement. Accrual of income tax auditors substantiated as follows. They found out that the company is "leased" employees in an interdependent with her society, which, in addition, though, is using the "simplified taxation." According to the tax authorities, in this situation it is clear that the outsourcing agreement is concluded with a single purpose - to get an unjustified tax benefit. However, the judge, on the other hand, the actions of the taxpayer did not find the offense alleged against him. They found that the involvement of experts took place as part of the disputed contract outsourcing on the basis of specific monthly orders generated by the applicant. Application contained a reference to the organization's needs in certain specialists, indicating the positions, specialties, cost of service and pay, start date, end time, and with the passage of time and the specific employee names. To independently selecting such specialists society had no option because the state simply did not have the personnel officer. And after visiting the staffing of such a position, the duties of the employed personnel officers included only clearance of personnel files of employees. At the same time, thanks to the outsourcing agreement Company increased direct sales of products sold as "leased" workers organized its promotion in the domestic market. For the Court, this indicates that for tax purposes the organization considered the operation in accordance with their actual economic sense due to reasonable economic or other reasons (objectives business nature). In addition, the Court stated that the fact that the relationship between individuals is established to determine the correctness of the prices of the deals. However, complaints about pricing in tax is just something not there.

Resolution of the Federal District of Volga 12.07.2012, № A65-20465/2011

26 october

Organization is entitled to a lump sum to take into account for tax purposes the cost of purchasing a non-exclusive right to use accounting software. So decided FAS Volga district in its judgment of 12.07.2012, № A65-20465/2011. As follows from the case, the tax assessed additional income tax society. The reason was the fact that, according to the tax office, the cost of works and services for the development and implementation of software blocks "Personnel", "salary", "Accounting. Production "," Tax Accounting "(including operational testing and training) in the amount of 1,011,017 rubles., Should be attributed to depreciable property and, accordingly, is expensed in future periods. In turn, the Court recalled that, in accordance with paragraph 1 of Article 256 of the Tax Code depreciable assets are recognized, including the results of intellectual activity and other intellectual property rights, which are at the taxpayer's ownership. By virtue of the provisions of Article 1225 of the Civil Code, computer programs and databases, in fact, are protected intellectual creations. Meanwhile, the Court noted that the acquired intangible assets are recognized and (or) by the taxpayer of intellectual property and other intellectual property (exclusive rights to them.) For the recognition of intangible assets established in the first place, you must have the ability to bring the taxpayer economic benefit (income). At the same time accounting software directly income-are not related. This means that the cost of acquisition can not be the cost of the purchase of depreciable property. It is more appropriate to apply subparagraph 26 of paragraph 1 of Article 264 of the Tax Code. This provision established that the costs associated with the acquisition of the right to use computer software and databases on contracts with copyright holders, are the other costs associated with the production and sale. In the application of the accrual for such costs under subparagraph 3 of paragraph 7 of Article 272 of the Code recognizes the last day of the reporting period in which the application is received and put into operation.

Resolution of the Federal District in the Central from 06.09.2012, № A35-11848/2011

24 october

Base for VAT and the amount of tax payable to the budget, calculated on the basis of the data available to the taxpayer with respect to transactions made ​​by him and their qualifications at the end of the tax period (that is, including all the possible changes). If it turns out that the payment is not related to payments for goods (works, services), then it can not be recognized in advance. And consequently, in the base of the VAT to include it is not necessary. This was indicated FAS Central District in its decision of 06.09.2012, № A35-11848/2011. As follows from the case, the tax inspectors on the basis of the field audit assessed additional public VAT. The reason was the fact that the base of this tax are not included amounts received payment. In turn, the Court found that the disputed funds were indeed received by the time the alleged shipment. However, society is not made ​​due to lack of supply of the relevant license. In such circumstances, the Court held that the funds does not meet the legal nature of the advance payments. The Court also referred to the Constitutional Court of 30.09.2004 № 318-O. It states that are recognized upfront payments received by the taxpayer in the future delivery of goods, performance of works. This obliges the taxpayer to increase the tax base for VAT on those funds that are received in advance, ie before the actual shipment. Accordingly, there can be recognized upfront taxpayer incoming payment, which is not related to the actual implementation in the subsequent periods of goods (works, services).

Regulation of FAS Moscow District on 31.07.2012, № A40-6560/12

19 october

The Regulation of FAS Moscow District (Case of 31.07.2012, № A40-6560/12) with reference to paragraph 1 of Art. 312 of the Tax Code, noted that in applying the provisions of the international treaties of the Russian Federation on the basis of which the tax agent shall be exempt from withholding tax, foreign organizations to provide tax agent prior to the date of payment of income proof that the foreign organization has a permanent location in the state, with the Russian Federation has an international agreement regulating taxation issues. Said evidence shall be certified by a competent authority of the foreign state. If this confirmation is in a foreign language, the tax agent is also provided a translation into Russian. Competent authorities in the Russian Federation are the Ministry of Finance or his authorized representative, and in a foreign country - Minister of Finance, his authorized representative or the authority designated as a competent representative for the purposes of the Convention on the avoidance of double taxation of a particular state. Failure to comply with the conditions of release of tax revenues paid to a foreign organization from sources in the Russian Federation obliges society as a tax agent to produce the amount of the withholding tax and transfer to the budget. Since Article 310 of the Tax Code, the obligation to transfer to the budget amount of tax withheld from the income of foreign companies assigned to a tax agent if payment to the budget to be withheld and transferred to the budget of the tax to the tax agent penalties.

Decree of the Presidium of the Russian Federation of 10.07.2012, № 2241/12

17 october

The Decree of the Presidium of the Russian Federation of 10.07.2012, № 2241/12 noted that if the parties by mutual agreement directly prescribed in the contract a way to end the obligation of the customer to pay for work performed (service) as a deduction of an amount of penalty in case of delay in their implementation final settlement of the contract, such a method, by virtue of Art. 410 of the Civil Code, is reasonable and is a contractual condition is not contrary to the requirements of civil law. In this case, for such a set-off enough applications on one side.

Judgment of August 17, 2012 № VAS-10686/12

12 october

Information on the average number of employees of the organization and should represent all individual entrepreneurs without exception. It does not make any difference that the individual entrepreneur has no employees. This conclusion is contained in the Judgment of August 17, 2012 № VAS-10686/12. "Higher," the judge agreed that the actions of the entrepreneur constitutes a tax offense, the responsibility for which is provided by paragraph 1 of Article 126 of the Tax Code. Concluding there an entrepreneur obligation to provide information to the inspection of the average number of employees during the preceding calendar year, in spite of their absence, the court was guided by the provisions contained in paragraph 6, paragraph 1 of Article 23 and paragraph 3 of paragraph 3 of Article 80 of the Code. The arbitrators noted that the same paragraph of Article 80 of the Tax Code does not provide an opportunity not to submit to the tax authority information on the average number of PIs who have no employees. So there is no reason and proving the illegality of the contested decision inspection.

Regulation of FAS Moscow District on August 6, 2012 № A40-110416/11-99-473

10 october

The tax authorities may not one day decide to call the taxpayer liable under paragraph 1 of Article 129.1 of the Tax Code and paragraph 2 of this rule, which provides for sanctions in the repetition of law violation. This conclusion follows from the decision of FAS Moscow District on August 6, 2012 № A40-110416/11-99-473. As follows from the case, the inspectors within society counter check sent by mail request for documents related to the activities of the audited taxpayer. However, the mailing address is returned to the inspections in connection with the expiration of the retention period. In accordance with article 93.1 of the Tax Code, the judge concluded that the claim is received by the Company. Meanwhile, despite the fact that the documents on time were not available, the decision on liability company to liability under paragraph 1 of Article 129.1 of the Tax Code of the inspection was not made. The tax authorities have decided to try again and gave us a requirement. However, it was eventually performed in violation of the time allocated for a five-day period. Naologoviki one day rendered two decisions - one on paragraph 1 of Article 129.1 of the Tax Code, and the other is for "recurrent", paragraph 2 of this Article, the penalty for which is not 5 and 20 thousand. Society went to court. And the judges agreed that the tax taken out unjustified decision. They pointed out that repeated criminal offense committed by one person in any one calendar year after bringing him to justice under paragraph 1 of Article 129.1 of the Tax Code. Passing inspection in a single day several decisions on Article 129.1 of the Tax Code is not re-formed. So that the inspection there was no reason to bring the applicant to the tax liability under paragraph 2 of Article 129.1 of the Tax Code.

Regulation of FAS Moscow District on 05.07.2012, № A41-20293/11

5 october

The Regulation of FAS Moscow District (Case of 05.07.2012, № A41-20293/11) referring to the Decree of the Presidium of the Russian Federation of 24.11.2009, № 11200/09 noted that, in the event that the terms of payment of the loan agreement , and hence the calculation of interest on borrowings should be made in subsequent tax periods, and earlier periods of the taxpayer does not arise obligations to the lender upon maturity, does not arise and the costs to be included in the reduction in the tax base for tax income tax of previous periods.

Regulation of FAS Moscow District on 04.05.2012, № A40-87365/11-75-372

3 october

The Regulation of FAS Moscow District (Case of 04.05.2012, № A40-87365/11-75-372) with reference to Articles 171 and 172 of the Tax Code, noted that the taxpayer is entitled to deduct VAT charged by suppliers of goods (work, services, property rights) in the tax year in which the conditions for the use of tax deductions, namely: goods (works, services, property rights) acquired for operations recognized as objects of taxation of goods (works, services, property rights) and recorded, are properly completed invoice and primary documents. The individual filling the gaps in trade bills and acts of transfer can not be a ground for refusing to deduct VAT.

Resolution of the Federal District in Moscow on August 7, 2012 № A40-105313/11-140-440

28 september

Fixed assets, which the organization operates around the clock, you can amortize using a multiplying factor of "2". This was indicated FAS Moscow District in its decision of 7 August 2012 № A40-105313/11-140-440. As follows from the case, the fiscal authorities of the assessed additional income taxes and the amount of the sanctions. The reason was the fact that the order violated the application of Article 259 (Art. 259.3) of the Tax Code. It is amortized on an accelerated basis, plant and equipment that do not work in a high number of shifts, and a continuous clock function. Representatives of the fiscal authorities also referred to the fact that according to documentation provided by equipment manufacturers, these objects are designed for around the clock operation. So, round the clock for these assets is normal. The judges noted that the tax code does not decrypt the term "increased shift." Therefore, the provisions of paragraph 1 of Article 11 of the Code, the judge turned to the core articles of the Labour Code. And according to the rules of Articles 91, 103 TCs, if the production process the company goes beyond 40 hours a week, then it is entered shift work. In this work one shift - 8 hours a day with a 5-day work week - is normal, and two or more shift work is a work in high shifts. Respectively, to work in a high-clock work shifts is. The judges acknowledged that the concept of "conditions increased shift" is used in the Tax Code of the Russian Federation for the purposes of the special factor to the depreciation rate, while the subject of regulation of labor law is the relationship between employer and employee, folding over the establishment of working conditions of labor disputes, employee participation in production management, etc. However, the company as a production unit and the property complex can not function on their own, out of the will and participation of people - employees. Labor function of each employee connected with the operation of the equipment, and even staff not directly located in the premises (meaning leadership, administrative positions), are involved in the production process - control, control capacity. In this case, as the explanation of, the controversial equipment directly controlled by its employees. The presence of these circumstances, the Court concluded that the non-stop operation of the above equipment leads him to increased wear. Therefore, the fiscal authorities of unlawfully assessed additional income taxes.

Regulation of FAS Moscow District on 31.05.2012 № A14-7931/2011

21 september

The Regulation of FAS Moscow District on 31.05.2012 № A14-7931/2011 recognized that Chapter 21 of the Tax Code does not prohibit the signing of invoices on behalf of the individual entrepreneur authorized person. The judges argued their position as follows. According to paragraph 6 of Article 169 of the Tax Code of the invoice signed by the director and the chief accountant of the organization or other person authorized by the order (other administrative document) on the organization or attorney on behalf of the organization. When invoicing document is signed by the individual entrepreneur SP with details of the certificate of state registration. At the same time, in accordance with Article 26 of the Code taxpayer can participate in a relationship governed by the legislation on taxes and duties through legal or authorized representative, unless otherwise provided by the Code. By virtue of Article 21 of the Code the legal representatives of taxpayers - natural persons are persons who act as their representatives in accordance with the Civil Code of the Russian Federation. And paragraph 3 of Article 29 of the Code of the authorized representative of the taxpayer - natural persons shall exercise its powers on the basis of a notarized power of attorney or power of attorney, equated notarized in accordance with the Civil Code of the Russian Federation. However, in accordance with Article 185 of the Civil Code recognizes the power of attorney written authorization issued by one person to another person to represent to third parties. The written authorization of the transaction can be represented by the representative submitted directly to the third party. Thus, the judge concluded that the trustee has the right IP to sign invoices. That is, the invoice signed on behalf of the individual entrepreneur authorized person is not considered as made up with the offense.

Decree of the Presidium of the Russian Federation of 10.07.2012, № 2873/13

19 september

The Decree of the Presidium of the Russian Federation of 10.07.2012, № 2873/13 declared illegal involvement taxpayer liable for the Section 1, Art. 126 of the Tax Code (fine of 200 rubles for each non-or late submission of documents), superimposed on the results of a desk audit. The basis for the Court's conclusion was the fact that the taxpayer is not required to appeal against the said decision of the tax authority of court. From the system of interpretation of the provisions of Articles 101, 101.2, 101.4, 137-140 of the Tax Code that provided for in paragraph 5 of Article 101.2 of the Tax Code mandatory pre-trial order to appeal to a higher tax authority decision on liability (denial of involvement) to account for a tax offense applies only to decisions anticipated tax documentary or desk audits. In this case, the mandatory pre-trial appeal procedure does not apply to the tax authority decision made ​​on a review of materials other tax control measures.

The decision of the RF from 20.08.2012, № 8116/12

14 september

Decision of the Russian Federation of 20.08.2012, № 8116/12 declared invalid item 2.11 of Annex № 2 "Order of filling income tax return for the tax paid in connection with the simplified system of taxation" (order of the Russian Finance Ministry of 22.06.2009 № 58n) in part, that all values ​​of cost parameters indicated in full rubles, with values ​​of less than 50 cents discarded, and 50 cents or more are rounded up to the full rate.

Decree of the Presidium of the Russian Federation of 29.05.2012, № 16335/11

12 september

The Decree of the Presidium of the Russian Federation of 29.05.2012, № 16335/11 noted that if the minutes of the general meeting of shareholders, which are non-residents, provided that the dividends payable are reflected in the foreign currency and payable in the currency, despite the fact fact that they are subject to the accounting in rubles, the equivalent of the date of this decision, there is a negative foreign exchange differences may be included in non-operating expenses for tax purposes. The provisions of paragraphs. 5 § 1 of Art. 265 of the Tax Code does not contain any restrictions to account for the purposes of taxation of foreign exchange differences arising from the revaluation of foreign currency expressed in the commitment made by taxpayers in activities aimed at generating income. Absent in this article and any restrictions to account foreign exchange losses arising from the revaluation of its obligations to pay dividends.

Regulation of FAS Moscow District on 04.05.2012, № A40-58305/11-140-254

7 september

The Regulation of FAS Moscow District (Case of 04.05.2012, № A40-58305/11-140-254) with reference to paragraph 3 of Art. 257 of the Tax Code, noted that for tax purposes to intangible assets include only the exclusive rights to intellectual property, if in the process of developing a software product having the object of copyright in the form of an intangible product, recorded on a physical medium (disc), and the property rights to the object copyright. Transfer the same rights to the results of software development (ie, physical media and access codes) does not involve the transfer of exclusive rights to the software. These costs, in view of paragraphs. 26 paragraph 1 of Art. 264 of relate to the other costs associated with the production and sales, and are subject to the one-time write-off on the basis of the acts of acceptance and delivery of works.

Decree of the Presidium of the Russian Federation of 21.06.2012, № 2676/12

5 september

The Decree of the Presidium of the Russian Federation of 21.06.2012, № 2676/12, with reference to paragraph 4 of Art. 170 of the Tax Code, noted that lending operations are not subject to apportionment, including and to determine the total amount of 5% of the total cost of the acquisition, production and (or) the sale of goods (works, services), property rights.

Decree of the Presidium of the Russian Federation of 24.07.2012, № 3546/12

31 august

The Decree of the Presidium of the Russian Federation of 24.07.2012, № 3546/12, with reference to paragraph 4 of Art. 283 of Tax Code, noted that the successor of the reorganized entity to confirm the losses carried forward past also extends the obligation to keep the primary accounting documents confirming the amount generated legal predecessor loss.

Regulation of FAS Moscow District on 26.04.2012, № A40-83149/11-116-236

29 august

Regulation of FAS Moscow District (Case of 26.04.2012, № A40-83149/11-116-236) additional charge of unlawful income tax on compensation payments for a one-day trip. The court with reference to Art. 168 of the Labour Code of the Russian Federation noted that, by virtue of paragraph 3 of Art. 217 of the Tax Code are not subject to taxation, among others, the cost of compensation payments under an employment contract or other administrative documents. Other restrictions on the non-inclusion of travel expenses tax legislation does not contain, is not taken into account the argument inspection that the provisions of Articles 167 and 168 of the Labour Code and section 11 of the special direction of employees on business trips (approved by the Government of the Russian Federation of 13.10.2008 № 749) that if the traveling and has the opportunity every day to return to their place of permanent residence, the payment the employee is not made daily. Tax agent presented documents proving housekeeping visits workers, payments made on the basis of orders of the organization, travel expenses, confirmed the service tasks, orders to send an employee on a business trip, travel vouchers, expense reports.

Decree of the Presidium of the Russian Federation of 29.05.2012, № 17259/11

24 august

The Decree of the Presidium of the Russian Federation of 29.05.2012, № 17259/11 with reference to Art. 70 Tax Code, noted that, based on a literal distinction revenue claim a tax audit should be directed taxpayer (tax agent) within ten days from the date of entry into force of the decision to bring (denial of involvement) to account for tax offenses (paragraph 2), and in other cases, this requirement should be sent no later than three months from the date of detection of arrears (item 1). The rules of this Article shall apply also in the direction of the timing requirements for payment of fines (paragraph 3). In this case, the tax authority has the right to impose penalty interest as with arrears, and in certain periods of delay in payment to the obligation to pay tax. Verification of compliance with the statute of limitations by collecting fines for each day of delay.

Regulation of FAS Moscow District on 13.07.2012, № A40-133957/11-116-358

23 august

A taxpayer who has been required documents within the site inspection, the inspection must provide access to those papers in their territory. Moreover, within a period of ten days the documents to be retrieved from archives or other storage places and are auditors. On this duty of the taxpayer to submit the requested documents is performed. The conclusion reached by FAS Moscow District in its decision of 13 July 2012 № A40-133957/11-116-358. As follows from the case, the tax during the field audit requested a company to provide them with 7809 documents. Since the organization of this requirement is not met, the inspectors decided to punish her with a fine under Article 126 of the Tax Code, which amounted to more than 1.5 million. In turn, the judge considered it unlawful actions of inspection. The court decided that, in accordance with Article 89 of the Tax Code field audit conducted by the tax authority in the taxpayer where, because of paragraph 3 of paragraph 2 of Article 93 of the Code inspectors are entitled to review the original documents. This provision establishes the right place of the site inspection of the taxpayer as a territory, its subsidiaries and business units. Thus, during the site inspection by the taxpayer not required to submit all of the documents to the IRS, because there check may be carried out only in one case - namely, the absence of the possibility of an audit in the taxpayer (paragraph 1 of Art. 89 of the Tax Code) . Hence, in all other cases, a field tax audit, the tax authorities shall review the records only in the audited entity and its affiliate or business unit. In this case, the submission of documents in accordance with Article 93 of the Code within the site inspection does not mean their departure from the territory of the taxpayer. The court found that in this case the company has collected all the documentation that is so interested in tax, in one of its rooms. On this fact the company has supplied the inspectors notified in writing. In these circumstances, the Court held that the structure of the offense alleged against the taxpayer is absent.

Regulation of FAS Moscow District on 18.04.2012, № A40-76620/11-140-329

21 august

The Regulation of FAS Moscow District (Case of 18.04.2012, № A40-76620/11-140-329) with reference to paragraph 2 of Art. 266 Tax Code, noted that the taxpayer has the right to include in the allowance for doubtful accounts receivables to the reduction of the tax base for income tax as a bad debt in the event that the statute of limitations has not expired, but there can not be an instrument of punishment, court bailiff. The fact that the taxpayer has the right to file a writ of execution to collect the returned within the statutory time limit to this norm of the Tax Code does not apply.

Regulation of FAS Moscow District on 13.04.2012, № A40-85377/11-107-366

20 august

The Regulation of FAS Moscow District (Case of 13.04.2012, № A40-85377/11-107-366) referring to the Decree of the Presidium of the RF from 22.12.2009 № 11175/09m noted that spending on promotion of the goods supplied and owned distributors (merchandising services) aimed at increasing the future supply of the society, therefore, are economically justified, as are aimed at increasing revenue and income (profit) of supplies.

The conclusions of the Presidium of the proceedings № A40-43967/10-129-228 Moscow Arbitration Court

9 august

Payment to the bank for the outstanding support to counter the claim the bank guarantee is recognized legal costs. So, this amount may be included in the legal costs, which can be shifted to the loser of the dispute. The conclusion reached by the Presidium of the proceedings number A40-43967/10-129-228 Moscow Arbitration Court. The central issue is this. The company won a dispute with the IRS on additional, which made the inspectors during the inspection. In the course of the proceedings the company introduced as a counter to ensure a bank guarantee. After the court ruled in her favor, she went to court with another lawsuit - is to collect from the IRS court costs. And part of those costs were included for the bank guarantee. Price issue more than 3.5 million. Refusing to grant the application, the courts proceeded from the premise that society on its own initiative to present a bank guarantee as a counter security. And that society hoped to exclude a possible failure of the court of an application for interim measures. Therefore, these costs are not reasonable and is not reimbursable. In turn, "three judges' definition of BAC May 11, 2012 № VAS-6791/11 indicated that on this issue at the present time there was conflicting jurisprudence. Arbitrators are reminded that according to Article 101 of the Code of Arbitration Procedure court costs consist of state fees and court costs associated with the review of the case by the arbitral tribunal. In doing so, legal costs Article 106 APC assigned monetary amounts to be paid to the experts, witnesses, interpreters, costs related to the examination of evidence at the scene, the costs for the services of lawyers and other persons providing legal assistance (representatives), the costs of the legal entity to notification of a corporate dispute, if federal law provides for the obligation of the notification, and other expenses incurred by the persons participating in the case. Based on the provisions of the said rules of the Code, a number of commercial courts concluded that the list of costs is not exhaustive. And because costs in the form of payment of remuneration to the Bank for bank guarantees issued in order to provide security for the counter claim, shall be chargeable to the losing party in the court costs (FAS ruling of the Moscow District of December 21, 2010 № KA-A40/15924-10, Resolution of the Ninth Arbitration Court of Appeal of 29 December 2008, the case number A40-51265/08-111-199, on May 22, 2008 № A40-37510/07-211-SR etc.). "Higher," the judge canceled the court accepted the case of acts of refusal of society to recover from the inspection costs for the bank guarantee. In the case of a canceled for a new trial.

Regulation of FAS Moscow District on 25.04.2012. № A40-79873/11-99-360

8 august

The Regulation of FAS Moscow District (Case of 25.04.2012, № A40-79873/11-99-360) with reference to paragraph 4 of Art. 264 of the Tax Code, noted that the cost of advertising brochures containing information regarding existing products, are expenditures on advertising and rationing lie down and at the same time, by virtue of Articles 1477 and 1482 of the Civil Code of goods logos on clothing of workers and of the clothes they wear while working for normalized costs are not included.

Resolution of the Presidium of 07.02.2012. № 11637/11

7 august

The Decree of the Presidium of 07.02.2012, № 11637/11 with reference to Art. Art. 146, 153, 162, and paragraph 4 of Art. 166 Tax Code, noted that the public paid to suppliers on the basis of supply contracts to reduce premium cost of the goods, which implies the need for changes in the tax base for the VAT from suppliers and the amount of tax deductions for the value added tax from customers, so they can not be classified payment for services rendered by the Company to suppliers.

Decree of the Presidium of 22.06.2012 № 17

6 august

The Presidium of the decree of June 22, 2012 № 17 has defined the place of the constant of the Court for intellectual property rights the city of Moscow. Court for intellectual property rights is a specialized arbitration is considered within its jurisdiction cases of disputes related to the protection of intellectual property rights, as a trial and appellate courts. Act of December 6, 2011 № 4-FKZ established that court for intellectual property rights must be established no later than 1 February 2013. Thus it is formed with the appointment of at least half of the judges of the established number of judges of the Court for intellectual property rights.

Letter FAS Russia of 02.05.2012, № AK/13623

3 august

In a letter to FAS Russia of 02.05.2012, № AK/13623 noted that the provisions of the Federal Law of 13.03.2006 № 38-FZ "On Advertising" distributed including the advertisement being placed on the Internet. However, information about the product, its origin, packaging, product range, price, consumer properties and other similar information describing the goods for the consumer, posted on the official website of the manufacturer or seller of goods can not be classified as advertising. However, qualification as an advertising material or information is not dependent on how it is spread (on the Internet), and the manner of presentation and determined purpose of such information. Thus, in some cases, when posted on the website is aimed not so much to inform consumers about the organization or of goods sold, but on the selection of certain goods or the organization of similar goods, organizations (such as a pop-up banner), such information can be recognized advertising.

Resolution of the Federal Western Siberian region of 06.07.2012, № A75-11988/2010

1 august

Subject to the statutory requirements of the taxpayer, in the presence of real operations for the acquisition of goods (works, services), it can not be denied the right to deduct VAT. This was indicated FAS West Siberian District in its decision of 7 June 2012 in case number A75-11988/2010. This case is interesting in that it judges sided with the tax authority, which rejected the company to deduct the VAT claimed on subcontracting. Moreover, the tax authorities failed to prove to the Court that no work on the fact was not and could not be. The fact that the counterparty of the Company, which was responsible for the execution of controversial works, no fixed assets, including vehicles and personnel. And its core activity is trading. One would assume that the works he drew "third parties." By the way, most of the funds received for their execution, transfer to the account of a Company that would confirm this assumption. However, this money is then "sprayed" on Retail accounts. In this case, the inspection found no evidence the transfer of funds for fuel, subcontractor, or lease motor vehicles. But the clincher was such that the disputed work allegedly performed on a secure site. In this case, the workers were ordered not pass, without which the territory of the object is not to get into. The taxpayer could not challenge these arguments and the Court sided with the tax authorities, having decided that the company is not reasonably applied the multi-million dollar deduction of VAT.

Regulation of FAS Moscow District on 12.04.2012, № A40-123929/10-107-687

27 july

Regulation of FAS Moscow District (Case of 12.04.2012, № A40-123929/10-107-687) with reference to paragraphs. 20 paragraph 1 of Art. 265 of the Tax Code and the Federal Law of 24.11.1995, № 181-FZ "On social protection of disabled people in the Russian Federation" recognized as lawful the inclusion of non-operating expenses in the target board budget city of Moscow for job quotas, as the amount of required payments.

Regulation of FAS Moscow District on 10.04.2012, № A40-13739/10-145-68

25 july

The Regulation of FAS Moscow District (Case of 10.04.2012, № A40-13739/10-145-68) noted that some shortcomings in the design of sick leave with no significant, can not be the reason for the failure to offset the costs of compulsory social insurance.

Regulation of FAS Moscow District on 06.04.2012, № A40-65744/11-90-285

25 july

The Regulation of FAS Moscow District (Case of 06.04.2012, № A40-65744/11-90-285) with reference to Art. 255 of the Tax Code, noted that the taxpayer is entitled to take into account in the cost of wages for income tax purposes the cost of free meals workers where free meals provided by the collective and (or) the employment contract.

Regulation of FAS Moscow District on 05.04.2012, № A41-30918/10

20 july

The Regulation of FAS Moscow District (Case of 05.04.2012, № A41-30918/10) with reference to Art. 171 and 172 of the Tax Code, noted that these rules of the Tax Code determines that the condition of the residue will be the acquisition of goods (works, services) for operations recognized subject to taxation in accordance with Sec. 21 of the Tax Code, the presence of the invoices and the adoption of the registration of goods (works, services) and the appropriate source documents. The standards legislation indicate that the amount of tax assessed to be reported in the tax return is not determined on the basis of credit turnover to 68, and on the basis of calculated according to the Tax Code of the tax base and the tax rate. The legislation also provides for the limitation of the amount applied by deducting the amount of turnover in the debit account 68. The specifics of accounting assumes that the amount of tax calculated in accordance with the laws and reflected in the tax return may not match the totals billing records 68 accounting because the accounts are recorded including internal momentum.

Regulation of FAS Moscow District on 04.04.2012, № A40-24625/11-90-105

20 july

The Regulation of FAS Moscow District (Case of 04.04.2012, № A40-24625/11-90-105) noted that the taxpayer lawfully reduced income from retirement accounts payable with expired legal term for tax purposes in the amount of VAT paid on advances buyers because of the amount of advances received previously been calculated and paid VAT, which claimed to be recovered was not, since the goods are not shipped, deposits are not returned upon payment of VAT in the budget of the company did not receive an economic benefit in cash or in kind, given VAT not reasonably is income.

Settlement Agreement between the Federal Tax Service and the taxpayer

18 july

For the first time in the practice of reviewing cases in the order of supervision with the participation of the Federal Tax Service of the Presidium approved a settlement agreement between the taxpayer and the Tax Service. Thus the "high level" judicial acts were canceled and terminated the proceedings. As the press service of the Federal Tax Service, formerly the courts of first instance and appellate considered this matter in favor of the tax authority. However, the appeal court upheld the position of the taxpayer. Disagreeing with the decision of appeal, the tax authority appealed to the Supreme Arbitration Court, a statement of its supervisory review. Meanwhile, even before the proceedings of the Presidium of the taxpayer admitted the correctness of the inspection. In accordance with the settlement amount, additionally accrued for verification, he shall pay to the budget in its entirety. In FNS noted that the settlement agreement, approved by the Presidium, is a precedent. In order to further improve and develop procedures for amicable settlement of tax disputes by representatives of tax authorities consider it necessary to use all possible mechanisms and procedures for alternative resolution of tax disputes.

Resolution of the Federal District of the Moscow 23.03.2012, № A40-47825/11-116-132

13 july

The judgment of the Moscow District of FAS (case from 23.03.2012, № A40-47825/11-116-132) noted that when distributing promotional materials, the cost of which is taken into account as an expense in the taxation of profits, there are no grounds for the application of paragraphs. 25 § 3 of Art. 149 of the Tax Code (tax-exempt transfer of promotional goods (works, services), the cost of acquisition (creation) which units do not exceed 100 rubles) and paragraph 4 of Article 9 para. 170 of the Tax Code, which allows the presentation to deduct VAT in cases where a particular tax period, the share of total expenditure on the acquisition, production and (or) sale of goods (works, services), property rights, transactions of sale which are not subject to taxation not in exceed 5 percent of the total amount of the total cost of the acquisition, production and (or) sale of goods (works, services), property rights. By virtue of paragraphs. 2, § 1 of Art. 146 of the Tax Code, transfer of goods for their own use subject to VAT form is only if the cost of their acquisition are not included in the taxation of profits. Thus, the object of VAT taxation when distributing promotional items missing. As the promotional material acquired for the purposes of the main activities, implementation of which shall be subject to VAT, the taxpayer has fulfilled the requirements for obtaining VAT deductions provided by paragraph 2 of Art. 171 of the Tax Code.

Resolution of the Federal District of the Northwest from June 6, 2012 № A56-7883/2011

12 july

The deadline for submission of accounts to the tax authority is not counted in the calendar, and in working days. This conclusion came FAS Northwestern District in its decision of June 6, 2012 № A56-7883/2011. As follows from the case, the inspection company fined under paragraph 1 of Article 126 of the Tax Code for late submission of financial statements. The balance was deposited on November 3, while in accordance with paragraph 2 of Article 15 of the Act of November 21, 1996 № 129-FZ "On Accounting" the 30-day deadline for submission has expired on November 1. Meanwhile, the Court sided with the taxpayer. The court noted that under paragraph 1 of Article 11 of the Tax Code of the institutions, concepts and terminology of civil, family law and other branches of the Russian Federation, used in the Code apply in the sense in which they are used in these areas of legislation. Otherwise may be provided directly in the Code. So, just in case, when the Internal Revenue Code is not defined a concept or term, they can be used in the sense in which installed other legislation. At the same time, in paragraph 6 of Article 6.1 of the Code expressly states that the period specified days, calculated in working days, if it is not installed in calendar days. Accordingly, it is this norm should be guided by the purpose of applying the tax liability under the law. The Court emphasized that the calculation of the period the taxpayer buhotchetnosti by the general rules (ie, in calendar days) in this case "is based on an incorrect application by the courts of law and does not answer the principles of fair justice."

Ruling on June 6, 2012 № VAS-3328/12 in case number A53-19232/2010

11 july

The taxpayer is obliged to keep records that substantiate the size of the subject to VAT recovery during the whole period when the tax authority has the right to conduct tax audit. This conclusion came from YOU in determining the June 6, 2012 № VAS-3328/12 in case number A53-19232/2010. As follows from the case, with the establishment in August 2008 a new legal entity as a contribution to the charter capital of the company has transferred real estate. The amount of VAT subject to recovery under subparagraph 1 of paragraph 3 of Article 170 of the Code, has been reflected in the declaration. During the inspection tax found that the assets in 2003 were reconstructed (completion), so that their initial cost has increased. Inspectors are required to submit their invoices of the contractors, and book purchases (in order to determine the amount of VAT previously paid by the contractors involved in reconstruction, which the society is not reinstated by the transfer of property to the authorized capital). However, it appeared that in 2009 these documents were destroyed. This was the basis for determining the amount of VAT inspection, subject to recovery, calculated using data from the inventory of cards of the taxpayer. YOU nothing wrong in the actions of the tax is not found. The judges noted in paragraph 7 installed to paragraph 6 of Article 171 of the Code of the duty of the taxpayer in the case of restoration of the amount of tax taken into account when carrying out modernization (reconstruction) of the property within ten years specified in the declarations of the calculated amount of the reduced tax. Named assumes responsibility in the declaration information based on primary documents, confirming the reliability of the reflected data. The arguments about the illegality of the use of public inspection of the calculation method of the "higher" arbitrators are also recognized to be unfounded. They proceeded from the fact that the inspection of the data used inventory cards of the taxpayer, despite the fact that the application of the method of calculation due to the lack of documents, the preservation of which must be guaranteed by society.

Resolution of the Federal Volga-Vyatka region from May 30, 2012 № A82-6216/2011

10 july

The legislation does not provide for the obligation of the taxpayer shall be granted UPDF, the tax authority to provide proof of use of property for business purposes. A list of these documents are also not set by law. This was pointed out FAS Volga-Vyatka region in its decision of May 30, 2012 № A82-6216/2011. As follows from the case, the property of the individual entrepreneur, applying USN, was the building and construction of hydraulic water berth. During the inspection of one of these facilities tax found that it is in poor condition. And it excludes its use for business. In connection with this merchant was asked to pay for a given object property tax and the amounts of fines. However, this proposal the taxpayer has refused, citing the fact that the disputed object is about to be restored and will once again be used. In turn, the Court recalled that, in accordance with paragraph 1 of Article 346.11 of the Tax Code, organizations and individual entrepreneurs together with a common system of taxation is entitled to apply STS to the procedure provided for Chapter 26.2 of the Code. Moreover, paragraph 3 of Article 346.11 of the Code provides that organizations and individual entrepreneurs applying the regime released UPDF, in particular, from the obligation to pay tax on personal property in respect of property used for business. At the same time, according to Article 65 of the APC is the fiscal authorities must prove that the property was used for personal needs of the citizen. And because the relevant documents from the tax was not their decision on additional accrual of the tax was repealed.

The conclusions of the Presidium of the results of the case number A40-13149/11-94-120 Arbitration Court of Moscow.

06 july

In case of an alien having no work permit to work attracted the contractor, it does not mean that the customer will not be held responsible. He must also bear the administrative responsibility for violation of the rules to attract foreigners to work in Russia. By the conclusion reached on the basis of the Presidium of the case number A40-13149/11-94-120 Arbitration Court of Moscow. According to the case materials, the Company entered into a contract with a certain citizen of a contract under which the Executive has undertaken to carry out the organization, provision and management of repair and finishing works. He also had to ensure that these works - pass the result to the customer within the specified contract period. That, in turn, pledged to accept the result of work performed and pay him the stipulated price. Immigration Service found at the site of a citizen of Uzbekistan, who had no work permit. In this case the controllers have decided to prosecute, under Paragraph 1 of Article 18.15 of the Administrative Code, including the customer, even though the contractor blame for the violation took over. It is noteworthy that all three instances the courts sided with the representatives of the Federal Migration Service in Moscow. The courts have indicated the presence in society of the actions imputed to him an administrative offense. The argument was the following judges: it worked at the site of the Customer foreigner, who lacked authorization to work. And this is nothing but a violation of the provisions of paragraph 9 of Article 13.1 of the Act of July 25, 2002 № 115-FZ. So in this case, it must be responsible for both the contractor and the customer.

Resolution of the Federal District of Western Siberia on May 5, 2012 № A27-10607/2011

05 july

The possibility of depreciation does not depend on the date of registration of the (self-propelled) funds in the bodies of Gostehnadzora.K conclusion reached by the FAS of the West Siberian District in its decision of May 5, 2012 № A27-10607/2011. As follows from the case, on the basis of a tax audit community was assessed additional income tax. Inspectors deemed inappropriate amount of depreciation accruals for dumpers BELAZ due to the fact that he is not registered in Gostekhnadzor. According to the auditors, the useful life of the purpose of applying Article 258 of the Tax Code can not begin before the date of vehicle registration. Meanwhile, the judge sided with the taxpayer. They pointed out that in accordance with paragraph 1 of Article 256 of the Code recognizes that depreciable property which is located at the taxpayer's ownership, use them to generate income and the cost of which shall be repaid by depreciation. The arbitrators found that the purchase and operation of the controversial dump card account is confirmed, treaties, acts of reception and transmission of fixed assets, inventory cards, waybills, the schedule of the actual flow statements and issuing fuel. And therefore, society has the right to charge depreciation on the vehicle from the 1st of the month following the month in which the object is put into operation. And the fact of its state registration in this case is irrelevant.

Judgment on March 15, 2012 № VAS-17259/11

04 july

Tax shall not be entitled to charge interest on the amount of personal income, time not listed by the tax agent, for the reason that his accounts of the inspection itself, and also blocked. By the conclusion reached in the Presidium of the case number A56-19155/2010. "Troika" of judges in determining the EAC on March 15, 2012 № VAS-17259/11 "to the nines," the cloak of his subordinate colleagues solutions. "Higher," the judge noted that the provisions of paragraph 2 of paragraph 3 of Article 75 of the Tax Code that fines are not charged on the amount of arrears, which the taxpayer could not pay due to the fact that under the decision of the tax authority or the court had suspended the operation of the taxpayer at a bank or seized on his property. In this case, paragraph 7 of Article 75 of the Code is established that the rules provided in this Article shall also apply to tax agents. It seems very strange position of the tax. What could be the penalties if the tax should be deducted from the salary, which the company does not issue because of its expense arrested? In the opinion of EAC can not be considered reasonable charge penalty interest on arrears of income tax for the period preceding the tax audit. Comparing the provisions of Articles 46 and 75 of the Code, the judge concluded that the payment of fines should be considered as an additional duty of a taxpayer other than the obligation to pay the tax. It is performed either simultaneously with the payment of tax, or later, but not before. In other words, the performance of the obligation to pay fines can not be considered in isolation from the obligation to pay the tax. Therefore, after the expiration of the term debt collection preclusive tax penalties can no longer serve as a way to ensure the fulfillment of the obligation to pay the tax. And because they tax charge is not entitled to. The Presidium is fully supported the position of the "troika".

Resolution of the Federal Volga Region of June 1, 2012 № A12-16620/2011

03 july

As a result of a tax audit inspectors found that the company has the duty to VAT. On this basis it has been held liable under paragraph 1 of Article 122 of the Tax Code. However, in the judgment of the Federal Antimonopoly Service of the Volga Region 1 June 2012 in case number A12-16620/2011 judge reminded that under Article 106 of the Tax Code, a tax offense shall be guilty of an unlawful act (action or inaction) of the taxpayer or tax agent or other persons for Code which establishes liability. In this case, paragraph 4 of Article 110 of the Code provides that the wine organization in the commission of the offense of tax is determined by the fault of its officers or its representatives, acts (inaction) which resulted in the commission of tax offenses. And in Article 109 of the Code defined circumstances precluding involvement of the person liable for tax offenses, which include, inter alia, include the lack of guilt of the person committing a tax offense. Moreover, based on the provisions of subparagraph 4 of paragraph 1 of Article 111 of the Code, a list of these circumstances is an open question. In the present case, the verdict of the court established the fact of fraudulent intent and a specific official of the society - the manager. A director of the company was recognized as deceived and misled. On this basis the judge concluded that there is no guilt in the actions of the society in committing a tax offense under paragraph 1 of Article 122 of the Code.

Resolution of the Federal District of the Moscow May 25, 2012 № A40-74770/11-129-317

02 july

The amounts of VAT charged by contractors the lessee during the permanent improvements to the leased premises shall be deductible only if the transfer results of these studies to the lessor. In that order insisted tax, but, do not agree to take off not only taxpayers, but a judge. An example of this - the decision of the Moscow District of the Federal Antimonopoly Service May 25, 2012 № A40-74770/11-129-317. As follows from the case, the society entered into a lease of nonresidential premises for a period of 7 years. However, his condition did not allow to use the area as intended (for delivery in the sublease). Therefore, the company had capital investments in permanent improvements of leased buildings. For this purpose, an agreement was concluded with the contractor. All is good, but refused to deduct tax relevant amounts "input" VAT. For its part, the judge stated that the fact that the society incurring costs for the production of construction works offices, and the fact that the VAT tax is not contested. It is obvious that the work performed are permanent improvements that are associated with the production activities of the company. After subletting the premises neotremontirovannyh simply impossible. Moreover, the "capital" expenditures made directly to the operations recognized subject to VAT. After reviewing the case file, the arbitrators stated that based on the meaning of paragraph 2 of Article 171 and paragraph 6 of Article 172 of the Tax Code, tax law does not bind the deduction for tax paid to the contractor, with the subsequent transfer of permanent improvements to the owner of the building. In such circumstances, according to the ministers of Themis, the tax authority no grounds for refusal of the application of VAT deductions on the disputed business transaction.

Resolution of the Federal District of the Moscow 16.03.2012, № A40-100845/10-4-498

29 june

The judgment of the Moscow District of FAS (case from 16.03.2012, № A40-100845/10-4-498) with reference to the Resolution of the Supreme Arbitration Court of 15.06.2010, № 1574/10 noted that the provisions of paragraphs. 2, § 2 of Art. 265 and Art. 266 of the Tax Code in conjunction with the rules governing accounting, include the obligation to take into account the amount of tax liabilities of debtors, for which the statute of limitations has expired, in the non-operating expenses in a given tax period (the year of expiration of the period), and not arbitrarily chosen by the taxpayer . Violation of this regulation by the taxpayer, in terms of its non-fulfillment of obligations for inventory commitments in the statutory terms and issuing appropriate orders can not be regarded as grounds for exclusion of accounts receivable with expired limitation period in the non-operating expenses in the period in which the limitation period has expired .

Regulation of the FAS of the Moscow District of 15.03.2012, № A40-807/10-20-4

28 june

The judgment of the Moscow District of FAS (case from 15.03.2012, № A40-807/10-20-4) with reference to paragraph 1 of Art. 252 of the Tax Code noted that the right to reduce the amount of income received expenditures provided to taxpayers to offset the costs actually incurred by them relating to the receipt of income, and therefore, it is due to the need to confirm the proper documentation of the fact incurring such expenses. For the purposes of the above rules to account for costs when calculating the tax is the taxpayer must prove the validity of their claims, the obligation to submit documents proving the charges rests with him. The fact of stealing a safe with documents does not relieve the taxpayer from the performance of their duty to confirm the costs incurred by the primary documents of tax legislation.

Resolution of the Federal District of Moscow on 12.03.2012, № A40-47608/11-91-203

28 june

The judgment of the Moscow District of FAS (case from 12.03.2012, № A40-47608/11-91-203 noted that the Tax Code does not contain a definition of compensation relating to the performance of job duties. Hence, by § 1 of Art. 11 Tax Code, the term is used in the sense that it gives the labor laws. in Art. 164 of the Labour Code stipulates that compensation - a cash payment set for the workers compensation costs associated with the performance of their work or other duties on non-interest insurance contributions and personal income tax.

Resolution of the Federal District of the Moscow 12.03.2012, № A40-64229/11-129-273

27 june

Resolution of the Moscow District of FAS (case from 12.03.2012, № A40-64229/11-129-273) found to be unlawful omissions of the tax authority, and, consequently, the decision to call the taxpayer liable. Inaction is expressed in non-taxpayer copies of documents obtained during the site inspection company and used as evidence of imputed tax offenses (protocols questioning contractors, extended current account statements, etc.). By an act of tax inspection, in violation of Article 3.1. 100 of the Tax Code, have not been accompanied by the documents listed in the Act and confirming the facts of violation of the applicant legislation on taxes and fees. Because § 6 Art. 100 of the Tax Code establishes the preclusive time limit for submission of written objections to the tax audit act, omission of the tax authority made it impossible to view public objections to the tax audit report in its entirety. Evidence of delivery of these documents to the applicant at the time of inspection, review of materials testing, inspection is not represented.

Resolution of the Presidium of the Supreme Arbitration Court of 03.04.2012, № 15483/11

25 june

The Decree of the Presidium of the RF from 03.04.2012, № 15483/11, with reference to paragraph 1 of Art. 24 and Clause 2 of Article. 161 of the Tax Code stated that the failure of the Russian organization of responsibilities for the retention of value added tax from the funds paid to the foreign contractor does not relieve it of the obligation to calculate the tax and pay it into the budget. In this case, the specified obligation of a tax agent corresponds the right to use the deduction of value added tax in the amount of tax paid in the manner prescribed by paragraph 3 of Art. 171 of the Tax Code.

Determination of the Higher Arbitration Court of May 18, 2012 № VAS-5900/12.

21 june

Seizure of vehicles does not entail the loss of property rights to them. Moreover, the application of this measure is not grounds for removing the vehicle from registration and exemption from payment of vehicle tax. To such conclusion the Supreme Arbitration Court in its decision of May 18, 2012 № VAS-5900/12. The essence of the dispute is as follows. In a criminal case on the part of the individual entrepreneur registered in the vehicle was seized. According to PI, it was an obstacle to the work of any action with vehicles, including removing them from consideration in the traffic police. However, the judges felt that in this situation, the obligation to pay the vehicle tax to the merchant has not been removed. His conclusion they did under the provisions of Articles 357, 358, 362 of the Tax Code. In addition, the PI was unable to provide the court with proof that he is in the relevant time, addressed to the bodies of state registration of the vehicle with the application for deregistration of any of the number of cars included in the inventory of his arrest and this was refused.

Resolution of May 2, 2012 № A27-5809/2011

20 june

Organizations and individual entrepreneurs are entitled to exemption from VAT if within three months the amount of revenue from the sale of goods (works, services), excluding tax shall not exceed a total of two million rubles. This is referred to in paragraph 1 of Article 145 of the Tax Code. It is necessary to provide the IFTS waiver from the duties of VAT, that is, this exemption does not apply, by default, the FAS said the West Siberian District in its decision of May 2, 2012 № A27-5809/2011. As follows from the case, tax specialists have found that an entrepreneur, being in the audited period, the payer of the VAT, this tax is not counted and not paid. At the same time an application for exemption from duty and VAT registration documents confirming the right to release the businessman to the tax authority is not represented. The fact that the PI for the preceding three months has not earned 2,000,000 rubles, the situation can not be saved. The judges concluded that the employer violated the order of exemption from the duties of VAT provided in Article 145 of the Tax Code. Therefore, additional charges incurred by the tax, the servants of Themis felt more than justified.

Resolution of the Federal District of the Moscow May 25, 2012 № A40-74770/11-129-317

19 june

The amounts of VAT charged by contractors the lessee during the permanent improvements to the leased premises shall be deductible only if the transfer results of these studies to the lessor. In that order insisted tax, but they do not agree to a judge. An example of this - the decision of the Moscow District of the Federal Antimonopoly Service May 25, 2012 № A40-74770/11-129-317. As follows from the case, the society entered into a lease of nonresidential premises for a period of 7 years. However, his condition did not allow to use the area as intended (for delivery in the sublease). Therefore, the company had capital investments in permanent improvements of leased buildings. For this purpose, an agreement was concluded with the contractor. Tax Deduction denied in relevant amounts "input" VAT. For its part, the judge stated that the fact that the society incurring costs for the production of construction works offices, and the fact that the VAT tax is not contested. It is obvious that the work performed are permanent improvements that are associated with the production activities of the company. After subletting the premises neotremontirovannyh simply impossible. Moreover, the "capital" expenditures made directly to the operations recognized subject to VAT. After reviewing the case file, the arbitrators stated that based on the meaning of paragraph 2 of Article 171 and paragraph 6 of Article 172 of the Tax Code, tax law does not bind the deduction for tax paid to the contractor, with the subsequent transfer of permanent improvements to the owner of the building. In such circumstances, according to the judges, the tax authority no grounds for refusal of the application of VAT deductions on the disputed business transaction.

Resolution of the Federal Central District on May 21, 2012 № A48-3647/2011

15 june

Late submission of documents claimed by the tax punishable by a fine under Article 126 of the Tax Code. However, in some cases, the judge can reduce it significantly. An example of this - the decision of the Central District of the Federal Antimonopoly Service May 21, 2012 № A48-3647/2011. As follows from the case, during the desk audit refined society of the VAT declaration was sent to require the submission of documents. At 10 days after its receipt the company had to produce a book purchases tax authorities, the book sales, invoices for purchased goods (works, services), explaining how the product is in stock postings to the provision of accounting documents confirming this fact; contracts with suppliers of goods (works, services), information on availability of storage facilities (number, address), in their absence - contracts of storage, payment documents confirming payment of the rent; information on the implementation of delivery - as a transport carrier goods, and so forth Copies of the documents in the amount of the claimed 360 pieces were submitted to the tax in violation of the deadline of 8 days. As a result, fiscal authorities have written to society a fine of 144,000 rubles. In this case tax inspectors have taken into account as an aggravating responsibility of the fact that in 2011 the company already was involved in a similar responsibility. In this regard, the size of the sanctions has been increased by 100%. Meanwhile, the judge in this case found the circumstances mitigating liability of the taxpayer. The court took into consideration the following facts: a minor omission period (eight days); understaffing shots - in the accounting department lacked the staff, chief accountant of the disease, which is involved in the preparation of documents for the tax office, and in parallel - Preparation of tax, accounting and statistical reporting. In addition, it became clear that the Organization had only one copy machine, and the average time to make a copy of it is 1.5 minutes. It is obvious that under such circumstances, it is difficult to comply with the requirement of the tax on time. Therefore, acknowledging the guilt of the taxpayer, the Court reduced the size of all imposed on him a fine of 100 times.

Resolution of the Federal District of the Northwest by April 17, 2012 № A66-9074/2011

13 juny

The organization applying mode UPDF can not be penalized under Article 122 of the Tax Code for failure to pay VAT, even if he committed it to the invoice. This conclusion came FAS Northwestern District in its decision of April 17, 2012 № A66-9074/2011. The Arbitration Court had ruled that in accordance with paragraph 2 of Article 346.11 of the Tax Code provides for the use of UPDF organizations of their exemption from the obligation to pay corporate income tax, property tax. In addition, the mode of applying the UPDF are not recognized by the taxpayers of VAT, except for the VAT payable on goods imported into the territory of the Russian Federation and other territories under its jurisdiction, as well as VAT, payable in accordance with Article 174.1 of the Code. At the same time under subparagraph 1 of paragraph 5 of Article 173 of the Code by non-taxpayers shall calculate the amount of tax payable to the budget, in the case of issuing an invoice to the buyer with the release of the amount of VAT. Thus, the mode of organization applying UPDF, putting an invoice with a dedicated VAT in it, condemns himself to pay the tax in the budget. Meanwhile, the sanctions under article 122 of the Code can be applied only to the taxpayers of VAT. That is, the mode of organization applying UPDF is not.

Resolution of the Federal District of the Moscow April 28, 2012 № A40-87461/11-99-409

08 juny

In cases where the tax authority in conducting a desk audit revealed no errors and other inconsistencies in declarations provided, reasons to reclaim an explanation of the taxpayer, as well as primary records he does not. This was pointed out FAS Moscow District in its decision of April 28, 2012 № A40-87461/11-99-409. The judges noted that the prohibition of such actions is contained in paragraph 7 of Article 88 of the Tax Code. This rule provides that during the desk audit the tax authority shall not be entitled to claim from the taxpayer for additional information and documents, unless otherwise provided in this Article, or if the submission of such documents, together with the tax declaration (calculation) is not provided by the Code. In this case, paragraph 3 of Article 88 of the Code states that if the test detected an error in the declaration (calculation) and (or) the contradictions in the said information, this shall be reported to the taxpayer of the requirement to report within five days, the necessary explanations and make the corrections within the prescribed period . Thus, if during the desk audit did not reveal any differences, and explain what the taxpayer did not have to. In the present case, the disputed claim did not contain references to the fact that it was billed in connection with the identification of any errors, contradictions or inconsistencies.

Resolution of the Federal District of the West Siberian city of 05.04.2012 № A27-8757/2011

06 june

The cost of fuel are normalized. This conclusion follows from the Decision of the FAS of the West Siberian District on 05.04.2012, № A27-8757/2011, which confirmed that Ch. 25 of the Tax Code does not provide for regulation of fuel consumption. In addition, there is in it and references to some standards. However, the judgment was not in favor of the taxpayer. As follows from the case, society, guided by guidelines (enacted by decree of the Ministry of Transport March 14, 2008 № AM-23-p), calculated the rate of expenditure on fuel. However, the taxation of income taken into account and the "surplus." Documents submitted by the taxpayer, in particular, traffic logs (form number 3), acts to withdraw fuel, fuel consumption combined statements testified to the account in excess of the norms of "fuel" costs. In turn, the judge expressed the view that the disputed amount of expenditure can be taken into account when calculating income tax in full. However, they indicated that we should not forget the provisions of Article 252 of the Tax Code. This rule established the requirement to justify the economic costs incurred. Moreover, by virtue of Part 1 of Article 65 of the APC to present relevant evidence to the taxpayer himself. In this same case, no explanation from the taxpayer has not been received. Therefore, the decision on additional accrual of tax inspection, it was recognized as lawful.

Determination of March 30, 2012 № 69-B12-1

30 may

If the employee is unable to return to work due to lack of train tickets at the box office, it must be reserved by documents attesting to the fact that they do not. In addition, it is necessary to prove that the other mode of transport in time to get to the place of service is also not possible. With these documents the employer will not be able to fire an employee for absenteeism under sub-"a" of paragraph 6 of Article 81 of the Labour Code. This was pointed out the Supreme Court in its decision of March 30, 2012 № 69-B12-1. The judges appealed to the provisions of the Resolution of the Plenum of the Sun March 17, 2004 № 2. In paragraphs 38 and 39 of this document states that in considering the case for reinstatement persons dismissed under paragraph 6 of Section 81 of the Code, the employer must present evidence showing that the employee has committed gross violations of one of the job duties specified in this point. It should be borne in mind that the list of gross violations of work duties, which gives grounds for termination of employment with the employee for this article is exhaustive and is not subject to broad interpretation. Moreover, dismissal on such grounds as truancy, in particular, can be made for absence from work without valid reason, ie, absence from work during the working day (shift), regardless of the length of the working day (shift). In the present case, the plaintiff applied for summary punishment of dismissal, according to the judges, it disproportionately committed a misdemeanor. The employee warned the employer about the problem and even sent to fax the statement to be granted two days off (one - at his own expense). The decision of the judges affected the same way and that before an employee is not subject to disciplinary liability. As a result, the employer who fired the employee regardless of the reasons that it failed to promptly begin to fulfill their job duties, it is necessary not only to restore it to work, but also to pay her salary for the period of enforced idleness.

Regulation of the FAS case of the Moscow District of 22.02.2012, № A41-23656/11

25 may

The judgment of the Moscow District of FAS (case from 22.02.2012, № A41-23656/11) noted that the criteria for the validity of expenses that reduce taxable income, defined Art. 252 of the Tax Code, may serve as criteria for the validity of tax deductions for VAT, as the last set of Articles 171 and 172 of the Tax Code and not subject to the rules relating to income taxes. Therefore, if the taxpayer costs are not taken in income tax expense, the reason for the inability to use tax deductions for VAT no.

Resolution of the Federal District of the Moscow case from 07.03.2012, № A40-73963/11-140-317

24 may

The judgment of the Moscow District of FAS (case from 07.03.2012, № A40-73963/11-140-317) with reference to paragraph 2 of Art. 173 of the Tax Code noted that the company may claim a tax return tax deductions, the right to have arisen in previous tax periods during the 3-year period.

Resolution of the Federal District of the Moscow case from 07.03.2012, № A40-63891/11-140-278

23 may

The judgment of the Moscow District of FAS (case from 07.03.2012, № A40-63891/11-140-278) declared illegal the decision of the tax authority to prosecute, under Art. 126 of the Tax Code (failure to submit or late submission of documents), issued by the tax authority in conducting a desk audit of the VAT declaration. The findings of the court based on the following. In accordance with Art. 172 of the Tax Code Tax Deductions are made on the basis of invoices and documents proving the actual payment of the tax on goods imported into the customs territory of the Russian Federation, after the registration of goods (works, services) and in the presence of the primary documents. The Court examined that in the request for submission of documents is a list of the documents claimed to conduct site inspection, which imposes excessive burdens on the taxpayer for the collection, production, copying and presentation documents specified in the request for detailed explanations, analytical information, lease agreements with contractors may not be the subject of a desk tax audit. In violation of Section 1, Art. 32, § 7 of Art. 88 of the Tax Code by the tax authority requested to check the documents that the tax authority shall not be entitled to request.

Resolution of the Presidium of the Russian Federation of 28.02.2012, № 14139/11

16 may

The Decree of the Presidium of the Russian Federation of 28.02.2012, № 14139/11 noted that the activities of retail sale of goods, carried out in offices, is not subject to the special tax treatment as a single tax on imputed income.

Resolution of the Federal District of the Moscow case from 15.02.2012, № A41-17204/11

12 may

The judgment of the Moscow District of FAS (case from 15.02.2012, № A41-17204/11) noted that the cost of the purchase of commodities that are implemented in the same tax period at a price below the purchase does not involve additional taxation. The rules contained in Art. 252 of the Tax Code does not permit contrary to the tax authority, and their arbitrary application, requiring the establishment of objective communication costs incurred by the taxpayer with the thrust of its activities for profit, with the burden of proof rests with the taxpayer unreasonable costs to the tax authorities. The arguments of the inspection is actually limited to assessing the economic efficiency of expenditure incurred by a taxpayer that is not provided by the tax legislation as a criterion for determining the tax base.

Resolution of the Federal District of the Moscow case from 15.02.2012, № A41-17204/11

11 may

The judgment of the Moscow District of FAS (case from 15.02.2012, № A41-17204/11) noted that the date of recognition of costs as a percentage of loan agreements, the validity of which have more than one reporting period, determined regardless of the period of interest payment determined by the contractual terms, and the actual payment of accrued interest to the lender. The classification of non-operating expenses costs in the form of accrued interest on debt obligations of any kind, subject to compliance by the taxpayer following conditions: the validity of such costs, their documentary evidence and to conduct the implementation of activities aimed at generating income. In this case the right of the taxpayer to include non-operating expenses in the amount of accrued interest on the loan agreements to do with the actual payment of funds to the lender.

Resolution of the Presidium of the Russian Federation of 31.01.2012, № 12207/11

10 may

The Decree of the Presidium of the Russian Federation of 31.01.2012, № 12207/11 noted that the rules of the Tax Code does not prohibit conduct site inspection in respect of the period for which the earlier decision of a desk audit of VAT was refunded in the manner prescribed by Art. 176 of the Tax Code. From the system of interpretation of the provisions of Articles 88, 89 and 176 of the Tax Code that field tax audit provides greater powers to control the tax authority, expressed in the order of, conditions, and the volume of documents to be checked. Thus, the results of tax inspection are the result of analysis obtained in the course of her evidence, how to obtain and study which are of independent nature, different from the order desk of tax audits.

Resolution of the Federal District of the Moscow case from 14.02.2012, № A40-4474/10-118-68

5 may

The judgment of the Moscow District of FAS (case from 14.02.2012, № A40-4474/10-118-68) noted that the premium for employee holidays, prizes for prizes in competitions, prize to the anniversary dates of employees, and other prizes provided by collective agreement, the provisions of the order of payment and financial incentives of employees, labor contracts with employees, enter the pay system, associated with industrial activity and employee performance of job duties, are encouraging and stimulating character, made ​​in favor of employees directly involved in the financial economic activities of the organization, aimed at increasing productivity and are regular in nature, and therefore meet the requirements established by section 1, Art. 252 of the Tax Code.

Resolution of the Federal District of the Moscow case from 09.02.2012, № A40-5156/11-90-21

4 may

The judgment of the Moscow District of FAS (case from 09.02.2012, № A40-5156/11-90-21) noted that the date of actual receipt of income in the form of vacation pay shall be determined as of the date of payment of income, including the transfer of income account taxpayers in the banks. Therefore, in accordance with paragraph 4 of Art. 226 of the Tax Code, income tax withholding amounts to the holiday pay should be made by the employer if the actual payment of funds to the taxpayer, including the transfer of income to the taxpayer by the bank.

Resolution of the Federal District of the Moscow case from 09.02.2012, № A40-131253/10-90-746

3 may

The judgment of the Moscow District of FAS (case from 09.02.2012, № A40-131253/10-90-746) noted that tax legislation does not contain a list of documents that must be compulsorily submitted by the taxpayer to the tax authority in order to confirm the validity application of the special rate of accelerated depreciation on fixed assets, operating in an aggressive process media. In order to establish grounds proving the legality of the use of accelerated depreciation rate taxpayer, you must examine the documents confirming the operation of the plant and equipment in contact with an aggressive technological environment, which can serve as a source of emergency.

Resolution of the Presidium of the Russian Federation № 12093/11

2 may

The Decree of the Presidium of the Russian Federation of 14.02.2012, № 12093/11, with reference to paragraphs. 3, No. 1, Art. 264 of the Tax Code and art. 1008 of the Civil Code indicated that the recognition of expenditure on completed works agent (also rendered outside of Russia) act of acceptance is not enough. So the proper proof, in view of § 1 of Art. 252 of the Tax Code, may be the agent of record. During the execution of the agency agreement the agent is obliged to submit reports to the principal in the manner and within the time specified in the contract, in the absence of appropriate conditions in the agreement submitted to the agent reports as enforcement of a contract or upon termination of the contract.

Resolution of the Federal District of the Moscow № A40-27699/11-116-79

1 may

Company under contract to pay and accept delivery of registered contractor delivered the goods. All the legal requirements for the application of VAT deduction have been met, but the tax can be justifiably claimed to remove the residues, if they have valid claims to the contractor reporting company. For example, in the Resolution of the Federal District of the Moscow April 6, 2012 in case number A40-27699/11-116-79. The actions of fiscal authorities have been recognized as lawful. As follows from the case, the tax audit determined that the contractor company is not represented in the tax declaration for the transportation tax. On this basis it was concluded that some vehicles have no counterpart. Since no information presented in the form № 2-PIT, it is clear that the relevant time, wage partner is not declared and not paid. He had no fixed assets, and that was confirmed "my best" on property tax. In such circumstances, the judge agreed with the tax authorities, which in this case the actions of society aimed solely at obtaining undue tax benefits.
Resolution of the Federal District of the Moscow case number A40-131253/10-90-746

25 april

The judgment of the Moscow District of FAS (case from 09.02.2012, № A40-131253/10-90-746) noted that tax legislation does not contain a list of documents that must be compulsorily submitted by the taxpayer to the tax authority in order to confirm the validity application of the special rate of accelerated depreciation on fixed assets, operating in an aggressive process media. In order to establish grounds proving the legality of the use of accelerated depreciation rate taxpayer, you must examine the documents confirming the operation of the plant and equipment in contact with an aggressive technological environment, which can serve as a source of emergency.

Resolution of the Federal District of Urals 06.03.2012, № F09-810/12

20 april

The judgment of the FAS of the Ural District in its decision of 06.03.2012, № F09-810/12 concluded that the certificate on the state budget settlements should not be shown to the sum owed by the taxpayer, the right to collect that fiscal authorities have already lost. Opinion of the Judges based on the fact that, according to subparagraph 10 of paragraph 1 of Article 32 of the Tax Code, the tax authorities are obliged to submit to the taxpayer, fee payer or tax agent, upon request, information about the state of his accounts with the budget. Form of certificate of execution of a taxpayer obligation to pay taxes, insurance premiums, fines and tax penalties, together with the methodological guidelines for its use was approved by order of the Federal Tax Service of May 23, 2005 @ MM-3-19/206 number. This document does not provide an indication of the Help information about the loss of the possibility of collecting the outstanding debt of the taxpayer to the budget. However, despite this, the information contained in the certificate must match the real duties of the taxpayer to pay taxes, fees, fines and penalties, that is to be credible. In addition, the arbitrators concluded that the marking of incomplete data in the certificate of arrears of taxes, fees, fines and penalties, outstanding taxpayer, it affects the right to accurate information necessary for the discharge of their legitimate rights and interests, including those in the business, and (or) other economic activities.

Resolution of the Federal District of the Moscow case from 13.12.2011, № A41-36345/10

20 april

The judgment of the Moscow District of FAS (case from 13.12.2011, № A41-36345/10) with reference to paragraph 3 of Art. 170 of the Tax Code noted that since the retirement of inventory (finished goods) as a result of lack, loss, damage, fire does not change the original purpose of their acquisition, the tax authorities have no legal grounds to demand the restoration of previously accepted for deduction of VAT for loss of wealth, and therefore to conclude that violations of rules by the taxpayer on the application of the tax deduction.

Resolution of the Federal District of Moscow (the case on 05.12.2011, № A40-28922/11-75-118

18 april

The judgment of the Moscow District of FAS case from 05.12.2011, № A40-28922/11-75-118) with reference to the paragraphs. 3, No. 7, Art. 272 of the Tax Code stated that the tax base is calculated on the basis of the tax period only on the basis of primary documents. In cases where the costs of supporting documents are received in the next period, the taxpayer includes the cost of expenses only to the period in which the documents were obtained, until the original documents the taxpayer unable to take into account the expenses and deductions.

Resolution of the Federal District of the Far East 21.03.2012, № F03-492/2012

18 april

The judgment of the Federal Antimonopoly Service of the Far Eastern District 21.03.2012, № F03-492/2012 noted, fiscal authorities have removed the alleged reasonable costs of public procurement of goods and the amount of VAT deductions. Fiscal authorities have argued that the cost of the disputed goods artificially inflated by including in the chain of suppliers firms "ephemeral." These companies have been established formally, without the purpose of conducting business. They do not have actual independence, not of tax returns or make the minimum payments, recorded at the mass registration, etc. One such argument was that when testing revealed that it was out of his office to manage the taxpayer's actual current accounts firms ephemeral (as determined by IP-address). That was enough to judge, guided by paragraph 10 of Resolution of the Plenum of the Supreme October 12, 2006 № 53, the company recognized a tax benefit obtained unfounded.

Resolution of the Presidium of the Russian Federation of 31.01.2012, № 12987/11

13 april

The Decree of the Presidium of the Russian Federation of 31.01.2012, № 12987/11, with reference to paragraph 2 of Art. 171 of the Tax Code stated that the public rightfully claimed to deduct the VAT paid by the contractors in the cost of work on the elimination of fixed assets, while the inspection there were no grounds for refusal of the application of tax deductions.

Resolution of the Presidium of the Russian Federation of 17.01.2012, № 10077/11

11 april

The Decree of the Presidium of the Russian Federation of 17.01.2012, № 10077/11 noted that the calculation of both the land and other taxes accounted for as an expense in excessive amount (including non-use benefits as a result of a release) can not qualify as error in the calculation of income tax. The conclusion is that the company discovered the error (distortion) in the calculation of land tax to be fixed in accordance with paragraph 1 of Art. 54 of the Tax Code by making the appropriate changes for the period in which the error (distortion) are admitted, is illegal. Accounting as an expense initially calculated the amount of land tax, the appropriate provisions of § § 252 and 1, No. 1, Art. 264 NC, can not qualify as an error. Adjustment of tax base for land tax should be considered as a new factor, which indicates the need to address over-calculated the amount of land tax in the period specified in the correction of non-operating income, which list is by virtue of Art. 250 of the Tax Code is not exhaustive.

Resolution of the Federal District of the Moscow 13.03.2012, № A40-49801/11-91-213

06 april

Details of the payment order on the invoice to the down payment. The invoice, drawn up on advances, there is no number of the payment order. This means that a violation of paragraph 5.1 of Article 169 of the Tax Code, is obvious. Consequently, it is impossible to apply the deduction of VAT? However, this conclusion did not agree to the arbitrators in the judgment of the Federal Antimonopoly Service of the Moscow District 13.03.2012, № A40-49801/11-91-213. The argument of the tax authority that the invoice, issued in violation of the requirements of paragraph 5.1 of Article 169 of the Tax Code, may serve as a basis for the tax deduction, the courts declared unlawful. The arbitrators pointed out that the denial of tax deduction for the VAT to the seller of goods (works, services), they calculated the amounts of payment, partial payment received for future delivery of goods, this provision is not provided. The court found that during the desk audit company submitted invoices, statements of cash received and the products shipped, a certificate on the amounts of VAT, calculated from the amount of prepayment, etc. The data from these documents are quite allow us to compare the period of accrual of the tax with the period of shipment and appropriate amounts of tax to deduct. A reference to the failure of the inspection payment documents rejected by the courts as untenable, not based on the provisions of Article 172 of the Tax Code.

Resolution of the Federal District of the Moscow case from 09.11.2011, № A40-11990/11-115-39

4 april

The judgment of the Moscow District of FAS (case from 09.11.2011, № A40-11990/11-115-39) on the application of the coefficient of accelerated depreciation (Sec. 7, Art. 259 of the Tax Code) noted the following. Under the influence of aggressive environment means the totality of natural and (or) man-made factors affecting plant and equipment. Under the influence of aggressive technological environment refers to finding the fixed assets in contact with the explosive, flammable, toxic or other aggressive process environments. Thus, in the first case to establish the fact of the influence of aggressive environment for fixed assets, that is the primary means of attack for the negative consequences resulting from such contact. In the second, it suffices to establish only the fact of the primary means of contact with an aggressive technological environment, which creates a risk of accidents. The taxpayer has a right to determine the list of objects that are related to the technological conditions of use are subject to the conditions stipulated by § 7 of Art. 259 of the Tax Code, based on the technological features of the functioning and operation of facilities. The use of accelerated depreciation rate achieved in the society of the asset (the garage), in contact with the explosive, flammable, toxic or other aggressive technological environment, which may be the cause (source) to initiate an emergency. Society presented adequate evidence to support the exploitation of the garage building in certain hazardous industrial facilities, which is the basis for the application of a special depreciation rate.

Resolution of the Federal District of the Moscow case from 16.11.2011, № A40-1037/11-99-5

30 march

The judgment of the Moscow District of FAS (case from 16.11.2011, № A40-1037/11-99-5) noted that based on the provisions of paragraphs. 2, § 1 of Art. 265 of the Tax Code to include non-operating expenses is reasonable, that is aimed at generating revenue costs of implementing the activities. Consequently, despite the fact that the disputed costs in the form of taxpayer (bank loans at higher interest rates and the subsequent issuance of loans interdependent person at a lower rate) correspond described in this norm of the Tax Code, they do not meet the criterion of economic viability, because it does not aim at getting income. Reducing the tax obligations due to the reduction of the tax base in the amount of expenses in accordance with paragraph 1 of the Decree of the Plenum of the RF of 12.10.2006, the number 53 is a tax benefit, which is estimated to obtain the validity of the court in each case.

Resolution of the Federal District of the Moscow case from 08.11.2011, № A40-560/11-99-3

26 march

The judgment of the Moscow District of FAS (case from 08.11.2011, № A40-560/11-99-3) noted that the taxpayer is entitled to VAT charged suppliers of promotional products, to deduct the full amount on the basis of Articles 171 and 172 of the Tax Code, as the transmission of advertising materials, regardless of recipients qualifies as a transfer of goods for their own needs, which is not subject to taxation in accordance with Art. 146 of the Tax Code. By virtue of paragraphs 2, paragraph 1 of Art. 146 of the Tax Code, transfer of goods for their own use subject to VAT form is only if the cost of their acquisition are not included in the taxation of profits. The cost of promotional materials taken into account by the taxpayer in expenses taken into account in the taxation of profits, in accordance with Art. 264 of the Tax Code. If you are distributing promotional materials, the cost of which is taken into account as an expense in the taxation of profits, there are no grounds for the application of paragraphs. 25 § 3 of Art. 149 of the Tax Code (tax-exempt transfer of promotional goods (works, services), the cost of acquisition (creation) which units do not exceed 100 rubles) and paragraph 4 of Article 9 para. 170 of the Tax Code, which allows the presentation to deduct VAT in cases where a particular tax period, the share of total expenditure on the acquisition, production and (or) sale of goods (works, services), property rights, transactions of sale which are not subject to taxation not in exceed 5 percent of the total amount of the total cost of the acquisition, production and (or) sale of goods (works, services), property rights. As the promotional material for the purposes of the society acquired the core activities of trade-productions, the implementation of which is subject to VAT, the conditions of society obtaining VAT deductions provided for in paragraph 2 of Art. 171 of the Tax Code.

Resolution of the Federal District of the Moscow case from 27.10.2011, № A40-122187/10-127-692

23 march

The judgment of the Moscow District of FAS (case from 27.10.2011, № A40-122187/10-127-692) with reference to Art. 173 of the Tax Code stated that the fact that the presentation to the deduction of VAT outside the tax period in which there was such a right, not a ground for refusal of tax authorities in such a deduction. Presentation of the residue at a later period did not lead to the formation of the debt before the budget.

Resolution of the Federal District of the Moscow case from 14.10.2011, № A40-151888/10-129-621

21 march

The judgment of the Moscow District of FAS (case on 14.10.2011, № A40-151888/10-129-621) with reference to paragraph 1 of Art. 39 Tax Code, noted that the receipt of the deposit contract on account of rent payments - the return of payment - not an operation for the sale of goods (works, services) and subject to VAT. Security deposit of its legal nature, acts as a performance guarantee tenant obligations under the contract and its payment is not related to payment for services, so it should not be included in the VAT tax base.

Resolution of the Presidium of the Russian Federation of 27.09.2011, № 4134/11

19 march

The Decree of the Presidium of the Russian Federation of 27.09.2011, № 4134/11 noted that the taxpayer is not entitled to apply the tax deduction (Sec. 1, Art. 172 of the Tax Code) of invoices, decorated with facsimile signature, as paragraph 5 of Article . 169 of the Tax Code provides that an invoice must contain the personal signature of the authorized persons.

Resolution of the Federal District of the Moscow case from 17.10.2011, № A40-141786/10-115-608

11 march

The judgment of the Moscow District of FAS (case from 17.10.2011, № A40-141786/10-115-608) noted that in reality produced by the parties execution of transactions, the fact that these transactions and documents proving their execution, on behalf of contracting company issued over the signatures of persons who deny their signature and that they have the authority of the head (with reference to the unreliability of information about registering him as a leader in the unified state register of legal persons), by itself, is not unconditional and sufficient evidence of the receiving society unjustified tax benefit. Organization-registered contractors of the taxpayer in the prescribed manner, as evidenced by extracts from the register, at the time the judicial act on the case can not be excluded from the register, the registration of these organizations are not recognized by the court as invalid. In addition, the taxpayer raised the commodity-material assets capitalized and placed on record in the appropriate accounts of accounting. The findings are consistent with the court the legal position of the RF set forth in the Resolution of the Plenum of the 12.10.2006, № 53 "On arbitration courts assessing the validity of the tax benefits received by the taxpayer," Decisions of the Presidium of the 09.03.2010, № 15 574/09 and from 20.04.2010 , the number 18 162/09.

Decree of 10 February 2012 in case number A41-31817/10 FAS Moscow District

7 march

Chapter 26.3 of the Tax Code does not provide a reduction in order to calculate the area of ​​retail space UTII to the area used to store goods. This was pointed out FAS Moscow District in its decision of February 10, 2012 in case number A41-31817/10.

The essence of the dispute is

. An individual entrepreneur rented a retail space in shopping center with total area of ​​10 square meters. meters. And as part of the area has been involved as a warehouse, an entrepreneur, "threw" her from the calculation of the amount UTII. In turn, fiscals have indicated that the provisions of Chapter 26.3 of the Tax Code of the selection area, which itself is customer service, provided only with respect to the objects stationary trading network, with sales areas. Used as an entrepreneur trading place for such facilities does not apply. Accordingly, the employer improperly determined the basic profitability, for which he was assessed additional taxes and penalties. This time the judge is fully shared the position of tax authorities.

Ruling on February 7, 2012 № VAS-835/12 in case number A74-3314/2010

5 march

absence of commodity and commodity-transport documents required number of details does not allow them to relate these to the attention of other documents and evidence of the unreliability and inconsistency of information. And this may be an additional proof that the controversial delivery did not commit, which will inevitably lead to a denial of the application of the deduction of VAT. This conclusion follows from the definition of BAC to February 7, 2012 № VAS-835/12 in case number A74-3314/2010.

As follows from the case, the tax authority audit concluded that the absence of real economic transactions between the taxpayer and his four partners. Two of them were excluded from the register, the rest were unclear to the management team. And with all these partners, the society did not have the necessary conditions for economic activity (absent staff, fixed assets, production assets, warehouses, vehicles).

In turn, the judge evaluated the evidence in the case file together in their mutual connection, agreed with the inspectors, the transactions were fictitious. Also for the arbitrators argument was the fact that the original documents did not contain all the necessary details, and therefore, they can not be regarded as proof of the reality of supply. Therefore, in the opinion of the arbitrators, or society may not consider the disputed costs in the taxation of profits, or to apply for VAT deduction.

Determination of the Supreme Court on January 13, 2012 № 74-B11-11

2 мarch

In the event that a dispute with an employee on the legality of his dismissal came before the court and the employer is willing to voluntarily restore the employee at work, in which case the cancellation of the order of dismissal does not help to avoid a trial. The same is reflected in the determination of the Supreme Court on January 13, 2012 № 74-B11-11.

As follows from the case, the citizen was fired for absenteeism under subparagraph "a" of paragraph 6 of Article 81 of the Labour Code. However, he found that the dismissal was carried out unlawfully and in breach of the order. The trial court sided with him, noting that the defendant in accordance with Article 56 of the Code of Civil Procedure is not proven that the plaintiff committed a disciplinary offense in the form of absenteeism. The organization decided to cancel the order for dismissal. "The victim" was reinstated in his job, and he was even paid the salary for the period of enforced idleness.

In such a situation, in theory, and the subject of the dispute is absent, and hence the claim for reinstatement can not be satisfied. However, the Supreme Court noted the following points, which missed the lower courts. Once the employer has issued an order to dismiss the employee, the employment relationship between the parties to an employment contract was terminated. In this regard, the employer had no right to perform legal actions arising from the terminated employment contract unilaterally, without the prior consent of the employee to restore these relations. This means that the actions of the employer to unilaterally reducing the employment relationship with an employee by abolishing the order of dismissal, legal do not matter. Consequently, the grounds for denial of the claim, they can not be found.

Court in this case, the employee is obliged to consider the claims on the merits and render a decision, which shall be assessed the legality of the employer at the time of termination of employment. In such cases, litigation can be avoided only if the employee agrees with the actions of the employer, which reversed its decision to dismiss. However, in the present case, this did not happen - the plaintiff refused to meet with an order to cancel his dismissal and was determined to defend their interests in court.

Case number A45-18204/2010 Arbitration Court of the Novosibirsk region.

27 February

Social Insurance Fund may not review a decision of the employer on behalf of the Commission on Recognition of social insurance valid reason of absence of the employee at the check-up. And therefore, refuse to accept to offset employee paid "sick" the Fund shall not be entitled. To such conclusion the Presidium of the proceedings of the Arbitral Tribunal A45-18204/2010 number of Novosibirsk region.

In determining you from December 9, 2012 № VAS-14379/11 stated that this issue is currently no uniformity in arbitration practice. Some courts, as was the case under consideration, find that the FSS has the right to disagree with the conclusions of the commission and the employer to reduce the amount of the benefit. Others, however, noted that the definition of good cause violations of hospital treatment or to appear at the appointed time on the medical examination and, therefore, there are grounds to reduce the size of the temporary disability benefits, the administration is the responsibility of the employer. Therefore, the Fund on its own initiative may not review a decision of a special commission created by the company in accordance with the law.

The fact that the content of paragraph 2 of Part 1 of Article 8 of the Law № 255-FZ, it follows that the absence of the insured person's medical examination serves as a basis for reducing the amount of benefit only if the reasons for this absence are not respectful. However, a note in the "sick" about the violation of the regime itself is not evidence of absence of good cause, "truancy».

Meanwhile, Article 11 of the FSS, approved by the Government on February 12, 1994 № 101, provides that in order to ensure control over the correct calculation and timely payment of sotsposoby enterprises regardless of their ownership by labor collectives are formed Commission on Social Security . Order of the FSS on July 15, 1994 № 556a approved Model Regulations of the Commission (the Commissioner) for social insurance. According to paragraph 2.2 of this Regulation Commission, including, checks the correctness of the administration of the company the right to benefits, the validity of deprivation or denial of grant. And by virtue of paragraph 5.1 and 5.2 of supervision of the Commission carries out Department of Social Insurance Fund and it is possible to appeal its decision. However, if the employee did not complain, then, by his own initiative, the Foundation re-evaluate the work of the commission could not. With these arguments and agreed to the Presidium.

Information Letter of the Presidium of the Russian Federation of 17.11.2011 № 148

26 February

Information Letter of the Presidium of the Russian Federation of 17.11.2011 № 148 resolution brought an overview of the practice of courts of arbitration cases involving the application of certain provisions of chapter 30 of the Tax Code, which, among other things, noted the following:

  • in the case of acquisition of the ownership of real property the purchaser is the payer of property tax regardless of the state registration of transfer of ownership, since the effect of the accounting legislation such registration is not listed among the prerequisites for consideration of the items on the balance sheet as fixed assets;
  • if a particular property is required to bring the state of readiness and capabilities of exploitation, such property may be considered as the primary means and recognized subject to taxation only after the necessary work and forming in the prescribed manner, taking into account the initial cost of the expenditure;
  • person who by virtue of Article 373 of the Tax Code, the payer of property tax, is required to submit a tax declaration and tax calculation based on advance payments in the case where it enjoys tax privileges named in this connection does not pay it in the budget.
Case number A68-14429/2009 Arbitration Court of the Tula region.

24 February

The tax on personal income, withholding of vacation time, should be sent to the budget on the day of payment to the employee. To such conclusion the Presidium of the proceedings of the Arbitral Tribunal A68-14429/2009 number Tula region. The organization, which fiscal authorities assessed additional penalties for late transfer of personal income tax applied to income in the form of holiday pay provisions of paragraph 2 of Article 223 of the Tax Code. According to this standard date of actual receipt of income from wages recognized by the last day of the month for which the employee has accrued a salary for their job duties. For its part, the inspectors said that under subparagraph a of paragraph 1 of Article 223 of the Code to withhold and remit tax to the budget must be on the day of holiday pay to the employee. The Supreme Arbitration Court in its decision of November 11, 2011 № VAS-11709/11 pointed out that the vacation pay, despite the fact that it is linked to an employment relationship with the taxpayer's tax agent has a different (other than wages)

Case number A33-10298/2010 Arbitration Court of Krasnoyarsk Territory

22 February

The tax, which is to address the inspection was wrongly refunded to the taxpayer, must be returned to the budget. To such conclusion the Presidium of the proceedings of the Arbitral Tribunal A33-10298/2010 number of Krasnoyarsk region. As a result of a desk audit tax authorities issued a decision on compensation to the public more than 2 million rubles in the form of VAT. However, later in the field audit the auditors have found that the tax was improperly compensated, because deductions were claimed on the invoices, exposed for services subject to tax at a rate of 0 percent. The Company performed the required tax, the tax is returned to the budget. But then, finding that her rights were violated, went to court. The courts of three instances supported by the taxpayer. The arbitrators came from the fact that the Tax Code contains no rules that allow tax authorities to offer to pay compensation to the budget before the tax amount. However, the Supreme Arbitration Court in its decision of November 22, 2011 № 12207/11 have the following. The circumstances surrounding the receipt of the society of illegal VAT reimbursement, directly related to the underestimation of the base of this tax and are due to improper use of tax deductions. The Presidium agreed that if the taxpayer did not initially have the right to deduct, that his rights could not be violated.

Resolution of the North-West district of December 21, 2011 № A21-1190/2011.

17 February

The fact that the equipment used in manufacturing, fiscal authorities have to prove it. It is quite possible that the disputed account object in the OS and, therefore, and turn it into a base for property tax, it is premature. For example, Decree of the North-West district of December 21, 2011 № A21-1190/2011. In the present case, fiscal authorities found that the company has commissioned a paper machine. This is evidenced, in particular, the fact that she had made ​​some kind of a party paper. In turn, the arbitrators came to a different conclusion. Production start-up work involves the launch of this vehicle and issue a certain number of papers, but the release of the equipment has not reached its design capacity, and much of the paper is produced by marriage.

Judgment on December 13, 2011 № VAS-15928/11.

17 February

When combining the common system of taxation and the "vmenenki" the taxpayer is required to keep separate records of "input" VAT. In this case the fact of the reality of such a "division" of the tax should be documented, or at all possible to remain without any deduction. This conclusion follows from the definition of BAC to December 13, 2011 № VAS-15928/11. As follows from the case, in confirmation of the separate accounting of the taxpayer submitted an order book of income and expenditures and business transactions, book purchases and sales during the relevant time, a register of invoices. Paragraphs 5, 6, of the order was provided to receive and debit goods (works, services) at a rate of 100 percent of their quantitative income in accordance with the general regime of taxation, transfer to the retail trade, taxable UTII, the goods taken and recorded in accordance with the general taxation regime but not more than 5 percent of their revenue quantitative. The arbitrators pointed out that the established order of the entrepreneur of separate accounting must be confirmed by the reality of his conduct and compliance. The case file does not contain evidence of the transfer of goods to the retail facilities in the amount of 5 percent of the established order. In addition, the court conducted the analysis proceeds from the sale of goods transactions are not subject to VAT, the total implementation of all the evidence that the share of proceeds from the sale of goods at retail is 36.1 percent. Thus, the arbitrators concluded, merchant documents presented do not confirm a fact of separate accounting, as well as the fact of the reality of such records. Accordingly, it remains unproven and have the right to deduct VAT in the claimed amount.

Resolution of the Federal Volga Region of December 22, 2011 № A12-5405/2011

15 February

The fact of underreporting of the tax base for VAT in the amount of advances received (payment) must be determined on the basis of source documents supporting the circumstances entailing the obligation of the taxpayer to include these amounts in the tax base. The decision of the FAS of the Volga Region of December 22, 2011 № A12-5405/2011 judge pointed out that the admissible evidence of society's responsibilities to include in the base of the VAT advances can serve only payment documents (cash registers cashier's checks, money orders). Amiss, and other accounting documents confirming the receipt of funds in the treasury of the taxpayer (cash book, bank statements on your checking account). But the presence of "advance" of invoices - and only - in this case is not enough.

Resolution of the Federal District of the Moscow 18.01.2012, № A41-8923/11.

15 february

Tax not entitled to refuse to register a company at the home address of its sole shareholder, who is "in combination" is the CEO of the society. This conclusion came FAS Moscow District in its decision of January 18, 2012 № A41-8923/11. The arbitrators noted that the legislation defines as the location of his place of legal entity state registration. In turn, the registration is done at the location specified by the founders in a statement on the state registration of the permanent executive body. The use of premises for the state registration of the company has not said that the owner of the place in his apartment, and the company will be just in it to do business. That is, the place of state registration, and may well not coincide with the actual layout of the property complex and industrial premises. Consequently, the use of premises for the state registration of the society does not violate the rights and lawful interests of other citizens, as well as requirements to be satisfied in the living room. At the same time part 2 of article 17 of the Housing Code allows the use of premises for the professional activities of citizens, if it does not violate the rights and interests of others.

Determination of the Constitutional Court on 20.10.2011, № 1472-O

3 february

In its Decision of the Constitutional Court on 20.10.2011, № 1472-O pointed out that under the provisions of Art. 24 Tax Code, tax agents are persons who are responsible to calculate, withhold and remit tax at the tax to the budget of the Russian Federation (paragraph 1), for nonperformance or improper performance of his duties the tax agent is liable in accordance with Russian legislation (paragraph 5). Failure to comply with the tax agent assigned duties of the tax forms a separate offense and carries a fine (Article 123 of the Tax Code). From this norm should be the responsibility of tax agents provided for failure of public and legal responsibilities for deduction and (or) transfer (incomplete transfer) to the budget of the tax.

Decision of the Constitutional Court on 06.12.2011, the number 26-P

1 February

The judgment of the Constitutional Court on 06.12.2011, the number 26-P noted that providing for those entities that have ceased their activities (legal entities recognized as invalid), Simplified - non-judicial - the order of exclusion from the register related provisions of Article 21.1 and to paragraph 7 Article 22 of the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" set two conditions under which the entity recognizes virtually ceased its activities - the failure in the last twelve months preceding the time of the adoption by the registering authority of the decision, reporting documents provided by the law the Russian Federation on taxes and fees, and the failure of operations for at least one bank account. It should be borne in mind that the criteria for recognition of the legal entity is actually terminated its activities (inactive entity) are fully applicable to commercial organizations that can not be reasonably likely to indicate that the actual termination of a non-profit organization of their activities. Accordingly, the failure to non-profit organization in the last twelve months of operations for at least one bank account basis for its recognition is not inoperative. Failure to submit the same in the last twelve months, tax reporting documents is the basis for the possible involvement of religious organizations to the tax liability, but can not be considered sufficient for the termination of its activities, despite the fact that due to the current legislation the tax authorities have no right to determine whether the cease-profit organization is actually carry out their statutory activities.

Resolution of the Federal District of the Moscow № A40-2532/11-75-12

2 december

The judgment of the Moscow District of FAS (case from 14.10.2011, № A40-2532/11-75-12) noted that by virtue of Section 7, Art. 78 Tax Code, a statement of credit or refund of overpaid tax may be filed within three years from the date of payment of that amount. Thus, this norm of the Tax Code does not prevent a citizen (and any other person) in case of missing three-year period of application to the tax authorities to apply to the court for the return of budgetary overpayment by way of civil proceedings or arbitration, in which case the general rules of calculation statute of limitations - the date when the person knew or should have known about the violation of their right (Determination of the Constitutional Court of 21.06.2001 № 173-O). In the event that the taxpayer became aware of an existing overpayment only from the act of checking the calculations, said the return of overpaid amounts to the tax authority, and was denied, the taxpayer may apply to the court on the return or offset these amounts (paragraph 22 of Resolution of the Plenum of Supreme Russian Federation of 28.02.2001 № 5), because the statute of limitations in this case is terminated.

Resolution of the Federal District of the Moscow 17.10.2011, № A 41-14106/10.

2 december

The Decree of the Moscow District FAS (case of 17.10.2011, № A 41-14106/10) noted that the counterparty to the transaction that gave the procedure of Art. 93 of the Tax Code testimony of non-participation in the organization and not signing them original documents, is not proof of receipt by the taxpayer unjustified tax benefit. The tax authority has to prove the absence of real economic transactions with this counterparty, reflecting this in the decision to call the taxpayer to liability. In the absence of evidence is not making business transactions in connection with which the claimed right to a tax deduction or a reduction in taxable income, the conclusion that the taxpayer knew or should have known about the unreliability (inconsistency) of information can be made by the court in the evaluation of the circumstances set associated with the conclusion and execution of the contract (including the grounds on which the taxpayer was selected corresponding to the counterparty), and the other circumstances set forth in the Decree of the Plenum of the RF of 12.10.2006, № 53 «On arbitration courts assessing the validity of obtaining a taxpayer tax benefits. »

Resolution of the Federal District of the Moscow 14.10.2011, № A40-2532/11-75-12

23 november

The Decree of the Moscow District FAS (case of 14.10.2011, № A40-2532/11-75-12) noted that by virtue of Section 7, Art. 78 Tax Code, a statement of credit or refund of overpaid tax may be filed within three years from the date of payment of that amount. Thus, this norm of the Tax Code does not prevent a citizen (and any other person) in case of missing three-year period of application to the tax authorities to apply to the court for the return of budget overpayment through civil or arbitration proceedings, in which case the general rules of calculation statute of limitations - the day when the person knew or should have known of the violation of his right (of the Constitutional Court of Russian Federation of 21.06.2001 № 173-O). In that case, if the taxpayer became aware of an existing overpayment only from the act of checking the calculations, said the return of overpaid amounts to the tax authority and was denied, the taxpayer may apply to court for refund or offset such amounts (paragraph 22 of Resolution Plenum RF from 28.02.2001 № 5), because the statute of limitations in this case is terminated.

Resolution of the Federal District of the Moscow № A40-118755/09-108-879

09 november

The Decree of the Moscow District FAS (case of 13.09.2011, № A40-118755/09-108-879) noted that the procedure for recognizing expenses for accrual provided that the costs to be taken for tax purposes shall be established in the reporting (tax period), to which they relate, regardless of when actual payment of money and (or) other forms of payment (Sec. 1, Art. 272 ​​of the Tax Code). Consequently, called the norm of the Tax Code does not give the taxpayer the right to randomly select the tax period in which the composition of non-operating expenses include bad to recover the debt. In accordance with Articles 8 and 12 of the Federal Law of 21.11.1996 № 129-FZ "On accounting" of the organization prior to the preparation of annual financial statements to ensure the reliability of accounting data and financial statements are required to conduct an inventory of assets and liabilities, in which are verified and documented appropriately their availability, status and evaluation. The inventory shall be timely recording in the accounts without any omissions and withdrawals. A similar requirement for the timing of the inventory provided by Section 27 of the Regulation on Bookkeeping and Accounting (Approved by Order of the Russian Ministry of Finance of 29.07.1998, № 34n). In view of § 5.5. Methodical instructions on the inventory of assets and liabilities (approved by Order of the Russian Ministry of Finance of 13.06.1995 № 49) The results of the inventory should be reflected in the accounting and reporting of the month in which the inventory was completed, and on the annual inventory - in the annual financial report . Thus, the expiration of the statute of limitations on outstanding liabilities of counterparties taxpayer should learn during the annual inventory of assets and liabilities. Violation of this legal regulation of the taxpayer, was summed up in dereliction of duty for inventory commitments statutory period and the publication of the relevant order in the later period can not be regarded as a reason for not including accounts receivable with expired legal term in the non-operating expense in the period in which the statute of limitations had expired. The provisions of paragraphs. 2, § 2 of Art. 265, Art. 266 of the Tax Code in conjunction with the above regulations governing accounting, include the obligation of the taxpayer to take into account the amount of the obligations of debtors, for which the statute of limitations has expired, in the non-operating expenses in a given tax period (the year of expiration of the period), rather than randomly selected the taxpayer.

Resolution of the Federal District of the Moscow 04.10.2011, № A40-3639/11-20-16

04 november

The Decree of the Moscow District FAS (case of 04.10.2011, № A40-3639/11-20-16) noted that the payment of customs fees for customs clearance of goods by filing a temporary customs declaration is paying all the actions of customs authorities for customs clearance of goods. Therefore, these charges are included in costs by AP. 1, § 7, Art. 272 of the Tax Code.

Resolution of the Federal District of the Moscow 16.09.2011, № A40-130812/10-127-755

02 november

The Decree of the Moscow District FAS (case of 16.09.2011, № A40-130812/10-127-755) with reference to paragraph 1 of Art. 258 of the Tax Code and Government Decree of 01.01.2002 № 1 "On the Classification of ..." pointed out that if the useful life of engineering systems within the building structurally determined at the date of commissioning of these facilities depreciable property, significantly different from the useful life of the building, the taxpayer was entitled to take them to the accounting and tax accounting as separate facilities operating with such a cushioning them to different groups.

Resolution of the Federal District of the Moscow 13.09.2011, № A40-127287/10-89-913

31 october

The Decree of the Moscow District FAS (case of 13.09.2011, № A40-127287/10-89-913) noted that if the counterparty to the transaction is illegal, in violation of Art. 164 of the Tax Code, put an invoice with the VAT rate of 18%, then such amounts should be considered unjust enrichment by virtue of Articles 1102 and 1103 of the Civil Code and are subject to return of the organization. According to the legal position set out in the Decree of the Presidium of the Russian Federation of 20.12.2005 № 9263/05 and Determination of the Constitutional Court of 15.05.2007 № 372-O-P, the taxpayer is not entitled at his discretion, to change the tax legislation the tax rate . A zero rate of VAT is an indispensable element of taxation. The current legislation does not provide legal ability to change the tax rate established by agreement between the parties. The fact that the contractor has paid the specified amount of VAT to the budget is to rise to a refined his tax return in the manner prescribed the Tax Code, and the relationship to the return of unjustly acquired organization does not have.

Resolution of the Federal District of the Moscow 14.09.2011, № A40-123143/10-116-503

26 october

The Decree of the Moscow District FAS (case of 14.09.2011, № A40-123143/10-116-503) noted that the lack of commercial invoices TORG-12, which claimed deductions for VAT, stamp allotment of goods, job titles, decrypt the signature and the date is not an obstacle to the adoption of the VAT deducted, as the Tax Code does not provide requirements for completing the commercial invoice.

Resolution of the Federal District of the Moscow 12.09.2011, № A41-36076/10

26 october

The Decree of the Moscow District FAS (case of 12.09.2011, № A41-36076/10) noted that if the taxpayer voluntarily listed the amount of tax additionally charged him based on the decision of the tax authority, and subsequently by a court decision of tax authority recognized illegal and the money returned, the taxpayer's claim for payment of interest on the amount of tax not subject to the satisfaction.

Resolution of the Federal District of the Moscow 25.08.2011, № A40-92695/10-70-447

24 october

Resolution of the Federal District of Moscow (the case of 25.08.2011, № A40-92695/10-70-447) with reference to paragraph 3 of Art. 61, § 4 of Art. 90 of the Civil Code, § §. 3 and 5, Art. 20 Art. Federal Law of 08.02.1998 № 14-FZ "On Limited Liability Company" denied the claims of the tax authority of the compulsory liquidation of company. In support of the claim the tax authority indicates that the results of this analysis the balance sheets of the company for the disputed period and calculation of net assets of the past have had negative values​​. Court rejected the claim is legitimate because it does not prove the existence of gross violations of the society of the current legislation, bearing an inherent character, and the decrease of the net assets do not constitute grounds for immediate liquidation.

Resolution of the Federal District of the Moscow 29.07.2011, № A40-94667/10-13-439

21 october

Resolution of the Federal District of Moscow the case of 29.07.2011, № A40-94667/10-13-439) is recognized as a legitimate inclusion of costs in determining the tax base for income tax expenses for renting an apartment foreign staff, as required by the provisions of subsection 5, Art. 16 of the Federal Law of 25.07.2002 № 115-FZ "On the Legal Status of Aliens" and nn. "D" of paragraph 3 of the representation guarantees ... (approved by RF Government Decree of 24.03.2003, № 167), whereby the responsibility for housing foreign workers in accordance with Russian law on legal status of foreign citizens lies with the employer. At the same time, these payments are not taxable personal income tax by virtue of paragraph 3 of Art. 217 of the Tax Code.

Resolution of the Federal District of the Moscow 26.07.2011, № A40-38377/10-20-262

19 october

The Decree of the Moscow District FAS of 26.07.2011, № A40-38377/10-20-262 with reference to paragraph 6 of Art. 168 and n. 7, Art. 171 of the Tax Code noted that the organization has the right to apply VAT deduction from the cost of tickets purchased by seconded employees, notwithstanding the fact that the amount of VAT on the ticket has not been listed separately. The organization has the right to select it by calculation, and take a tax deduction.

Resolution of the Federal District of Moscow (the case of 11.07.2011, № A40-119193/10-116-455)

17 october

The Decree of the Moscow District FAS (case of 11.07.2011, № A40-119193/10-116-455) noted that an incorrect reference number CCD contractor on the invoice, as well as its absence in the electronic database of customs authorities did not prevent the application of tax deductions for VAT. The taxpayer-purchaser under the applicable law does not bear the burden of negative legal consequences for failing the information specified by the supplier.

Resolution of the Federal Antimonopoly Service of the Moscow District Case of 08.07.2011, № A40-78880/10-76-405

10 october

Resolution of the Federal Antimonopoly Service of the Moscow District of 08.07.2011, № A40-78880/10-76-405 declared illegal the decision of the tax authority in the application of paragraph 2 of Art. 269 ​​of the Tax Code (the right to include in the expenses of only a portion of accrued interest, because the organization has outstanding debts on debts owed to the foreign company, which owns 100% of the share capital of the company, while the value of liabilities of the company on a loan for more than three times its equity capital) . Court rightly found that the taxpayer is entitled to include in the expenses of the entire amount of accrued interest, as in this case, the rules of Art. 7 of the Tax Code, and the treaty of the Russian Federation and the Republic of Cyprus establishes other rules laid down in Art. 24 of the Agreement on Avoidance of Double Taxation with respect to taxes on income and capital from 05.12.1998.

Resolution of Moscow's FAC district case, dated 08/07/2011 № A40-100870/10-4-500

06 October

The Decree of the Moscow District Federal Antimonopoly Service (Case of 08.07.2011, № A40-100870/10-4-500) with reference to Articles 171 and 172 of Tax Code, noted that the taxpayer is entitled to a deduction to the amount of VAT paid in the cost of goods (works, services) purchased for the restoration of property, including in the case of a taxpayer to indemnity for the damage said property. Chapter 21 of the Tax Code contains no provision prohibiting the adoption of VAT amounts to a deduction if the insurance company agreed to pay the insurance indemnity, which includes the cost of repairs to VAT.

Resolution of Moscow's FAC district (case, dated 06/07/2011 № A41-8534/10

04 October

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 06.07.2011, № A41-8534/10) is recognized as valid the assignment of the costs of depreciation of, donated fixed assets, as the property is transferred by the taxpayer to the counterparty for the execution of works contracts. Norms of Paragraph 3, Article. 256 and n. 2, Art. 322 in this case, the application can not be.

Resolution of Moscow's FAC district (case, dated 30/06/2011 № A40-99462/10-114-530

29 September

The Decree of the Moscow District Federal Antimonopoly Service (Case of 30.06.2011, № A40-99462/10-114-530) noted that, according to subsection 4, section 4 of Art 45 of the Tax Code only required props in the payment order, without which the obligation to pay tax is not considered fulfilled — the account number of the Federal Treasury and the name of the beneficiary's bank, in case of improper instructions whose funds are not received in the budget system of Russia. Requirements of the correctness of instructions OKATO this article does not provide.

Resolution of Moscow's FAC district (case, dated 30/06/2011 № A40-99462/10-114-530

28 September

The Decree of the Moscow District Federal Antimonopoly Service (Case of 30.06.2011, № A40-99462/10-114-530) noted that the rules of Articles 169, 171 and 172 of the Tax Code contains an exhaustive list of the conditions under which the taxpayer has the right to use tax deductions: the presence of invoices for purchased goods (works, services), prepared in accordance with the requirements of Art. 169 NKF Russian Federation and the adoption of goods (works, services) to integrate, use of goods (works, services) in taxable transactions, the presence of the primary documents. In the event that a taxpayer who is a special tax regime, put the primary documents from VAT, it is on him, by virtue of claims 1 to Section 5, Art. 173 of the Tax Code, an obligation to pay to the budget presentation of the invoice amount of the tax and the buyer, paying the cost of purchased goods (services), including VAT, may declare the amount of tax to be deductible.

Resolution of Moscow's FAC district (case, dated 27/06/2011 № A40-55988/10-142-307

27 September

The Decree of the Moscow District Federal Antimonopoly Service (Case of 27.06.2011, № A40-55988/10-142-307) noted that the absence of the taxpayer permission to install the advertising structure is not a document that confirms the validity of the allocation of costs to the costs taken into account when calculating the tax income in accordance with Chapter 25 of the Tax Code. According to paragraph 4 of Art. 264 Russian Federation to the cost of advertising the organization include the costs of light and other forms of outdoor advertising, including production of promotional stands and billboards, as well as costs for other types of advertising.

Resolution of Moscow's FAC district (case, dated 24/06/2011 № A40-94204/10-142-498

26 September

The Decree of the Moscow District Federal Antimonopoly Service (Case of 24.06.2011, № A40-94204/10-142-498) with reference to Art. 252 of the Tax Code noted that the absence of acts performed by service names of officers and decrypt signatures of the officials is not grounds for withdrawal of improper execution of documents, as in all acts performed services for parties that formed these documents are signed and stamped each of the parties.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 12.07.2011 № 9149/10

23 September

The Decree of the Presidium of the Russian Federation of 12.07.2011 № 9149/10 was referring to Art. 249 of the Tax Code noted that if the rent for the use of non-residential premises consist of fixed and variable (utilities, etc.) parts, the compensation cost of tenant services variables leads to the formation of economic benefits to the lessor. This compensation for the landlord to be included in taxable income in the general procedure. Paying for utilities and other related content services to non-residential premises, the employer performs his own duties assigned to him by the lease contract, to provide the tenant of the property in a condition appropriate to its purpose, and therefore the payment for these services is the cost required to carry out entrepreneur activities aimed to receive income from rental of property.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.07.2011 № 1407/11

21 September

The Decree of the Presidium of the Russian Federation of 05.07.2011 № 1407/11 was noted that paragraph 4 referred to Art. 170 of the Tax Code generally separate accounting of VAT on purchased goods (works, services) applies to cases where the taxpayer performs as both taxable and tax-free (excluded from taxation) operation on any grounds provided by Chapter 21 of the Tax Code. Reinterpret § 4 of Art. 170 of the Tax Code does not agree with in paragraph 2 of this article the general order of allocation of amounts of tax on the cost of producing and selling goods (works, services). The provisions of paragraph 2 of Article 170 of the Tax Code are applicable not only in the amounts of VAT paid in expenses directly related to the main activity of the society, but also concern about the use of tax deductions of amounts of tax paid in the general running costs. Thus, society has no right to impose a tax deductible amount of VAT paid in the general running costs, in part (aspect ratio), attributable to operations for the production and sale of goods (works, services) are not recognized as subject to taxation in accordance with Chapter 21 of the Tax Code.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.07.2011 № 2346/11

19 September

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.07.2011 № 2346/11 was referring to the Articles 258 and 375 of the Tax Code, paras. 18 and 19 PBU 6/01, "Accounting for Fixed Assets" and Section 54 of the Guidelines for Accounting of fixed assets (approved by order of the Russian Ministry of Finance from 13.10.2003, № 91n) noted that, if obtained under a leasing agreement equipment accounted for in accordance with the terms of the balance of the lessee, the lessee is the use of accelerated depreciation rate equal to three, is illegal. The useful life, representing a time during which a fixed asset is used for the purposes of the taxpayer, not to be arbitrary and to be determined for both tax and accounting based classification of fixed assets (approved by RF Government Decree 01/01 .2002, the number 1).

Resolution of Moscow's FAC district (case, dated 19/05/2011 № A40-31488/10-142-189

2 September

The Decree of the Moscow District Federal Antimonopoly Service (Case of 19.05.2011, № A40-31488/10-142-189) noted that in accordance with Article 252 of the Tax Code possibility of accounting for certain expenses for the purposes of calculating income tax depends on the availability of documents supporting the costs incurred, the tax legislation does not specify requirements for documentation, which can be confirmed by the economic justification of costs and neither a list of such documents, nor their shape. In this connection, the taxpayers in order to confirm the economic viability of costs can be any, they may have internal organizational and administrative documents justifying the purpose of the disputed costs. Condition for the inclusion of costs in cost is the opportunity on the basis of available documents to the conclusion that the costs actually incurred. Into account should be taken by the taxpayer, any evidence to prove the fact and amount of these costs, which are subject to legal assessment in conjunction. Errors in the design of some source documents can not serve as grounds for refusal to recognize the costs if the costs are confirmed by other documents. Violation of the rules of registration of the primary accounting documents is a violation of legislation regulating relations in the sphere of accounting, but by itself does not entail the conclusion that there is no cost and as such is not an independent ground for exclusion from the costs actually incurred by the taxpayer costs.

Resolution of Moscow's FAC district (case, dated 04/05/2011 № A40-173950/09-90-1323

30 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 04.05.2011, № A40-173950/09-90-1323) noted that the signing of the original documents with other counterparties using facsimile signature reasonably deemed by the court not involving the tax consequences of a refusal to refund taxes value added tax and the recognition of expenses for tax purposes. By virtue of paragraph 2 of Art. 160 of the Civil Code to use in transactions facsimile reproduction of signatures by means of mechanical or other copying, digital signatures or other analogue of a handwritten signature is allowed in cases and in the manner provided by law, other legislation or agreement of the parties.

Resolution of Moscow's FAC district (case, dated 21/04/2011 № A40-162831/09-142-1356

29 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.04.2011, № A40-162831/09-142-1356) with reference to the definitions of the Constitutional Court from 24.01.2008, № 33-O-O of 05.03.2009 and was № 468-O-O pointed out that the taxpayer must prove the services rendered by the counterparty to the transaction (including foreign), and have the appropriate documents proving the business transactions. Typically, a document confirming the fact of service is an act of the Service or other similar document, which contains a description of services rendered. The Company operates in the Russian Federation shall exercise its right to receive tax benefits in accordance with the provisions of the Tax Code, not the tax laws of a foreign state. Russian tax legislation to taxpayers must meet certain requirements in the implementation of the above rights, that does not relieve the taxpayer from complying with the tax authority to submit documents, duly registered, that is in accordance with Art. 252 of the Tax Code, Art. 16 of the Russian Federation of 25.10.1991, the № 1807-1 "On the languages ​​of the peoples of the Russian Federation", paragraph 9 of the accounting. The Court also necessary to examine these documents from the position of the completeness of the content. Establish as to whether the content of such a document identifying issues on which consultations are undertaken, the amount, nature and direction of the services rendered, correct formation of the actual cost of services.

Resolution of Moscow's FAC district (case, dated 31/03/2011 № A40-53114/10-107-280

26 August

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 31.03.2011, № A40-53114/10-107-280) declared illegal the refusal of the tax authority to refund overpaid tax in connection with the omission of the term by the taxpayer to apply for the refund of tax (3 years, section 7, Art. 78 of the Tax Code), because of the fact that too much tax in the stated amount and the exact amount of the overpayment the taxpayer recognized upon signing the act of a joint verification of calculations. Evidence that the taxpayer was aware of the presence of an overpayment by the court previously set date, the tax authority has been submitted.

Resolution of Moscow's FAC district (case, dated 18/04/2011 № A41-16966/10

25 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.04.2011, № A41-16966/10) noted that, in accordance with paragraph 1 and paragraph 3 of Art. 93 Tax Code, the tax authority official conducting a tax audit, may require from the person required to check documents by presenting a single face (its representative) the requirement to submit documents (part 1). Documents that have been reclaimed during a tax audit, shall be submitted within 10 days from the date of deposit of the relevant requirements (Section 3). As the demand for documents was delivered to the taxpayer, the duty to submit the documents had not arisen. This finding is consistent with the above rules and the determination of the Constitutional Court from 12.07.2006 № 266-O, according to which the duty of presenting the documents for tax deduction arises from the taxpayer of the receipt with the tax authority to submit such documents. The cause of failure of the documents confirming, in accordance with Art. 172 of the Tax Code the right to tax deductions, was not the absence of these documents, and ignorance of the taxpayer to demand and obtain the documents by the tax authority.

Resolution of Moscow's FAC district (case, dated 18/04/2011 № A40-93116/10-13-423

24 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 18.04.2011, № A40-93116/10-13-423) noted that the organization is entitled to a lump sum attributable to expenses that reduce taxable income, the cost to repair the premises (Article 260 of the Tax Code) to based on preliminary contract of lease. The fact that the main lease agreement was not concluded, does not prevent accounting costs, since in accordance with Art. 252 of the Tax Code recognizes expenses any costs to generating revenue. Conclusion of the preliminary contract by a court of circumstances indicating the intention of the society to generate revenue.

Resolution of Moscow's FAC district (case, dated 18/04/2011 № A40-93116/10-13-423

23 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 18.04.2011, № A40-93116/10-13-423) noted that the investigator's decision to suspend the investigation in connection with the establishment of no person to be brought in as a defendant, is sufficient to write off the cost because the fact of theft and the fact that the culprit is not the establishment is confirmed. Therefore, the community in accordance with paragraphs. 5 para 2 of Art. 265 of the Tax Code, legally classified as non-operating expenses in the form of loss of shortage of material assets in case of absence of the perpetrators, as well as losses from theft, the perpetrators are not identified.

Resolution of Moscow's FAC district (case, dated 14/04/2011 № A40-75795/10-76-386

18 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 14.04.2011, № A40-75795/10-76-386) with reference to the definition of the Constitutional Court from 04.06.2007 № 320-OP admits to the inclusion of the costs, accounted for the profit tax, the cost of renting the pool because, in accordance with section 25 of Art. 255 of the Tax Code in spending taxpayer's payroll includes all expenses incurred for the benefit of the employee, provided the employment contract and (or) collective bargaining agreement.

Resolution of Moscow's FAC district (case, dated 14/04/2011 № A40-79230/10-35-409

17 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 14.04.2011, № A40-78540/10-99-387) with reference to the provisions of paragraphs 3, 9, 34, 35 PBU 19/02 "Accounting for Investments", Section 5 PBU 9 / 99 "Revenues organization," Section 11 of the Regulations on accounting and financial reporting in the Russian Federation (approved by Order of the Ministry of Finance from 29.07.1998 № 34n) noted that the costs associated with providing the organization to other organizations of loans are recognized as other expenses organizations, and be reflected in the account 91-2. Score 91 is used to record revenues in the amount of interest on loans granted by virtue of the fact that the granting of loans to third parties is not the main activity of the society. Consequently, the costs are debited accounts 90 may not apply to activities related to the implementation of investments, and therefore the argument of the inspection company exceeded five per cent barrier set by the requirements of Sec. Clause 4 of Article 9. 170 of the Tax Code, is not taken into account, because under this regulation must determine the share of total expenditure on the production of goods (works, services), property rights, implementation of the operations which are not taxable, the total value of the total cost of production, rather than the share of revenue.

Resolution of Moscow's FAC district (case, dated 13/04/2011 № A40-79230/10-35-409

16 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 13.04.2011, № A40-79230/10-35-409) noted that Article 18 of the Federal Law of 24.07.2009, № 212-FZ "On insurance premiums ...", the following rules the payment of insurance premiums. Payers of insurance premiums required to timely and fully pay the premiums (Item 1). The obligation to pay insurance premiums shall be considered performed by the payer of insurance premiums, unless otherwise provided in Part 6 of this article from the date the bank in order to transfer to the budget of the state extra-budgetary funds to the account of the Federal Treasury (with an appropriate budget classification code) in cash from the account payer insurance premiums in the bank if it enough money to balance the day of payment (items 1 5). The obligation to pay insurance premiums is not recognized if performed incorrectly indicated payer insurance premiums in the order for transfer of insurance premiums account number of the Federal Treasury, the budget classification code, and (or) the name of the beneficiary's bank, which caused non-listed this amount in the budget of the state budget fund for the corresponding Federal Treasury account (paragraph 4, subsection 6). Consequently, the error when you specify the CSC in this case caused no flow of funds in budget fund to the account of the Treasury.

Resolution of Moscow's FAC district (case, dated 08/04/2011 № A40-82912/10-146-420

16 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 08.04.2011, № A40-82912/10-146-420) with reference to paragraph 22 of Resolution of the Plenum of the RF from 17.02.2011 № 11 noted that paragraph 3 of Article 18.15 of the Administrative Code Russia establishes responsibility for failure to notify immigration authorities, and not notice him out of time. With this in mind the composition of the offense covered only cases where at the time of detection of an administrative offense the person has not notified the immigration authorities to bring to work a foreign citizen or stateless person.

Resolution of Moscow's FAC district (case, dated 31/03/2011 № A40-54251/10-111-293

15 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.03.2011, № A40-54251/10-111-293) noted that if the taxpayer in acquiring the goods did not act as a customer of the contract of carriage, the view waybills on form number T-1 is not required, to support the reality of delivering the goods may be submitted invoices in the form of trafficking in number 12, and invoices.

Resolution of Moscow's FAC district (case, dated 31/03/2011 № A40-56286/10-99-272

12 August

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.03.2011, № A40-56286/10-99-272) noted that the statutory deadlines for the implementation of procedures for tax collection (arrears, penalty) are preclusive and not be recovered. Article 70 of the Tax Code provides that the request must be made ​​within 3 months after the onset of the obligation to pay taxes or within 10 days from the date of the decision on raising the tax liability. After the expiration of the voluntary payment of the tax authority decides to collect taxes through cash in the accounts of the taxpayer in the bank (no later than 60 days after the expiration of the tax requirements). Decision on collection, taken after the expiry of the deadline will be considered invalid and shall not be enforceable. Thus, if the sum of those provided for in Articles 70, 46, 47 of the Tax Code in order to recover the said arrears, has expired, for example, in 2003 - 2004., This is evidence of the illegality of the payment of its claim in 2010.

Resolution of Moscow's FAC district (case, dated 29/03/2011 № A40-57145/10-99-284

29 July

In the Decree of the Moscow District of FAS, the 29/03/2011 (case number A40-57145/10-99-284) declared illegal tax agency collection letter, as exposed inspection requirements do not contain information about the grounds of levying taxes on the amounts of arrears, which accrued penalties, and interest accrual periods, fines (the requirements were put up on the basis of a cash balances). In accordance with Art. 69 of the Tax Code requirement should include details of the grounds for levying tax on the amount of arrears, which accrued penalties and interest accrual periods, fines, and to the provisions of the legislation on taxes and fees, which establish the obligation of the taxpayer to pay tax. The absence of these data suggests the invalidity of the claims based on the legal position set out in the Resolution of the Plenum of the RF from 28.02.2001 № 5.

Resolution of Moscow's FAC district (case, dated 21/03/2011 № A40-36395/10-107-192

27 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.03.2011, № A40-36395/10-107-192) noted that the payment of public accommodation (rent and payment of utility services), non-resident workers for the duration of labor contracts is compensated by moving to work in another locality with regard to the provisions of Articles 164, 165, 169 of the Labor Code, and the amount paid by the company are not subject to tax on personal income.

Resolution of Moscow's FAC district (case, dated 21/03/2011 № A40-36395/10-107-192

25 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.03.2011, № A40-36395/10-107-192) noted that the fact that the lack of travel documents to print the host does not refute the fact finding trip, because there are orders of the mission, office jobs, travel card and expense reports on Form AO-1.

Resolution of Moscow's FAC district (case, dated 10/03/2011 № A40-35160/10-114-197

22 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 10.03.2011, № A40-35160/10-114-197) with reference to the paragraphs. Section 3, Article 2. 170 of the Tax Code stated that society should not recover the VAT from shortage, damage items, as the legislation on taxes and fees contains no provisions requiring the taxpayer to recover the VAT on goods, unused to the activities subject to VAT because of the impossibility of such use, damage, loss.

Resolution of Moscow's FAC district (case, dated 16/02/2011 № A40-160420/09-115-1142

19 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 16.02.2011, № A40-160420/09-115-1142) with reference to Art. 247 of the Tax Code noted that paragraph 1 of Art. 309 of the Tax Code provides a list of private income received by a foreign organization that is not related to its business activities in Russia include the income of a foreign organization from sources within the Russian Federation and shall be subject to tax withheld at the source of income.

Resolution of Moscow's FAC district (case, dated 07/02/2011 № A40-38778/10-127-180

15 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 07.02.2011, № A40-38778/10-127-180) noted that the sale of goods for export are not included in the list of transactions that are exempt from taxation, and therefore the provisions of paragraph 4 of Article 149 and 170 NC Russia to export transactions do not apply. Duty organizations maintain separate accounting records transactions of sale of goods for export to the Russian Tax Code does not provide.

Resolution of Moscow's FAC district (case, dated 04/02/2011 № A40-59413/10-13-316)

14 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 04.02.2011, № A40-59413/10-13-316) noted that the documents, which shall be made overseas posting, in accordance with the Decree of the State Statistics Committee of Russia of 05.01.2004 № 1 (in particular order (the order) to send an employee on a business trip (form number T-9 and T-9a) and a service job (form number of T-10a)), their presence and design determined by the internal document organization and to document for tax purposes profit organizations is not compulsory. Court's findings are consistent with the position of the Russian Finance Ministry, comprising, for example, in a letter dated 06/12/2002, the № 16-00-16/158, which states that the organization may issue a regulatory document that sets out a list of documents that are the basis for sending an employee on a business trip.

Resolution of Moscow's FAC district (case, dated 03/02/2011 № A40-81012/09-20-527)

13 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.02.2011, № A40-81012/09-20-527) with reference to paragraph 8 of Art. 50 Tax Code, noted that the allocation of a legal entity of one or several legal entities in relation to the succession of the reorganized entity in terms of the performance of his obligations to pay taxes (fines, penalties) does not arise. If the selection of a legal entity of one or several legal entities, the taxpayer is unable to perform the full obligation to pay taxes and the reorganization was designed to breach of duty to pay taxes (penalties and fines), pursuant to a court evolved entities may jointly carry out the obligation to pay taxes (penalties and fines) of the reorganized entity.

The decision of the Supreme Arbitration Court of 19.05.2011 № 3943/11

12 July

The Decision of the Supreme Arbitration Court of 19.05.2011 № 3943/11 noted that paragraph 3 of Art. 170 of the Tax Code provides for cases in which the amount of tax taken by the taxpayer to a deduction for goods (works, services), including fixed assets and intangible assets, property rights, be reversed. Legislation on taxes and fees contains no provisions requiring the taxpayer in writing off the goods after the expiry date to recover the amount of VAT previously lawfully taken for deduction. In particular, does not constitute grounds for recovery of amounts of tax write-offs in the budget (the destruction) of inventory in connection with their loss, damage, shortage, marriage.

Resolution of the Presidium of the RF from 26.04.2011 № 23/11

8 July

The Decree of the Presidium of the Russian Federation from 26.04.2011 № 23/11 was noted that the use of tax deductions for VAT is the right of the taxpayer, has a declarative character by declaring them in the filed to the tax authority and tax returns can be realized only under defined in chapter 21 of the Code of conditions. Failure to declare tax deductions does not deprive taxpayers of their right to use in the future, under the conditions laid down in Articles 171 - 173 of the Tax Code.

A Supreme Court on 06.06.2011, № GKPI11-617

6 July

The Supreme Court on 06.06.2011, № GKPI11-617, with reference to Art. 185 of the Civil Code and the Federal Law on 21.011.1996 № 129-FZ "On Accounting", found that a power of attorney for inventory may be granted not only to employees of organizations, as provided in the Regulations of the USSR Ministry of Finance of 14.01.1967 № 17, but also other persons who are not with the organization of labor relations.

Resolution of Moscow's FAC district (case, dated 03/02/2011 № A40-49882/10-142-274)

4 July

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.02.2011, № A40-49882/10-142-274) noted that the Tax Code contains no requirement that the amount of tax may be taken as deductions only during the period of sale of goods, and not can be taken as deductions in subsequent tax periods not exceeding three-year period since the end of the tax period in which the tax was paid. Application of the tax deduction for VAT is a right, not an obligation of the taxpayer and is entitled to use it in any period in the presence of bases and the documents under Art. Art. 171, 172 of the Tax Code.

The decision of the Supreme Arbitration Court of Russia from 17.05.2011 № VAS-3440/11

28 June

Decision of the Russian Federation from 17.05.2011, № VAS-3440/11 for taxpayers who use STS with a taxable "income" found that they may reduce the amount of tax (Income tax), but not more than 50%, not only paid on contributions to OPS employees and paid from the taxpayer's temporary disability benefits, and paid contributions for OMC, OSS and injuries. Line 280 of tax return in that part of the declared inactive since 01/01/2010 because it does not correspond to the second paragraph of Section 3, Article. 346.21 of the Tax Code.
The above has been previously noted in a letter to the Federal Tax Service of Russia of 03.03.2011, № KE-4-3/3396@ (See review of 03/23/2011).

Resolution of Moscow's FAC district (case, dated 31/01/2011 № A40-58773/10-111-314)

24 June

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.01.2011, № A40-58773/10-111-314) on a matter related to the failure by the taxpayer claims the tax authority to tax (penalties, fines) on a voluntary basis and then setting a tax authority collection order to enforce the money from the account on which the taxpayer's money written off, noted the following. Paragraph 3 of Article 79 of the Tax Code provides for a taxpayer to choose a way to protect their violated rights in the event that the tax authority sought from him the amount of taxes, fees, penalties, fines too, that is unwarranted or illegal. In this case the Tax Code does not contain any indication that the right to appeal to the court a taxpayer is subject to pre-treatment by the tax body at the return of amounts recovered. Do not set this order and other federal law. Such an interpretation is given in the decree of the Presidium of the Russian Federation of April 20, 2010 № 17413/09. The statement of claim in court can be filed within three years from the date when the person knew or should have known about the over collection of tax.

Resolution of the Presidium of the Supreme Arbitration Court of 05.04.2011 № 2574/09

20 June

The Decree of the Presidium of Supreme Arbitration Court of 05.04.2011 № 2574/09 was noted that if the possibility of the application for judicial review of acts of a supervisory lost, subsequently forming the Supreme Arbitration Court of the Russian Federation's legal position on the disputed the question is not the basis for revision of the case of newly discovered evidence.

The decision of the Supreme Arbitration Court of Russia from 19.05.2011 № 3943/11

17 June

The Decision of the Supreme Arbitration Court of the Russian Federation of 19.05.2011 № 3943/11 was noted that paragraph 3 of Art. 170 of the Tax Code provides for cases in which the amount of VAT deductible by the taxpayer received the goods (works, services), including fixed assets and intangible assets, property rights, be reversed. Write-off items that have expired (sales) to the number of cases listed in Section 3, Article. 170 of the Tax Code does not apply.

Resolution of Moscow's FAC district (case, dated 27/01/2011 № A41-8360/10)

14 June

The Decree of the Moscow District Federal Antimonopoly Service (Case of 27.01.2011, № A41-8360/10) noted that if the company - the buyer is not a customer of the carriage, was not involved in the transportation of goods, the waybill, in this case does not provide and should not be granted in conjunction with other documents to the tax office during the inspection. To apply the tax credit on VAT should have been complied with the order established by Articles 171 and 172 of the Tax Code.

Resolution of Moscow's FAC district (case, dated 24/01/2011 № A40-49822/10-114-278)

9 June

The Regulation of FAS Moscow District (Case of 24.01.2011, № A40-49822/10-114-278) noted that Secs. 28 paragraph 1 and paragraph 4 of Art. 264 of the Tax Code does not define an exhaustive list of documents that could confirm the incurring advertising costs. The opinion of the tax authority that the fact that advertising in the broadcast media should be confirmed by the ethereal certificates issued by the broadcaster, not based on the norms of art. 252 of the Tax Code.

Resolution of Moscow's FAC district (case, dated 21/01/2011 № A40-37674/10-111-199)

6 June

Resolution of the Federal District of Moscow (the case on 21.01.2011, № A40-37674/10-111-199) declared illegal the decision of the tax authorities of the need to restore the amount of VAT payable on defective products, as qualified expenses (marriage or recurrent waste) on rules of Chapter 25 of the Tax Code does not affect the applicant's right to apply tax deductions for VAT by virtue of Art. 173 of the Tax Code.

Resolution of Moscow's FAC district (case, dated 21/01/2011 № A40-27538/10-20-203)

3 June

The Regulation of FAS Moscow District (Case of 21.01.2011, № A40-27538/10-20-203) with reference to paragraph 7 of Art. 1988 Tax Code, noted that the submission of tax returns for income tax is not one of those cases where the Inspectorate has the right to request additional documents by Art. 1988 Tax Code, and Chapter 25 of the Tax Code does not provide for duties of the taxpayer to submit to the tax authority, together with the tax return for income tax documents to prove the correctness of tax calculation, the courts have indicated that the accountability for failure disputed documents is illegal. Under paragraphs 6, 8, 9, Art. 1988 Tax Code, the obligation of the taxpayer to submit additional documents arises when testing the legality of using tax credits, with submission of VAT declaration, which states the right to a refund of tax, while checking the correctness of tax calculations relating to the use of natural resources.

Resolution of Moscow's FAC district (case, dated 17/01/2011 № A40-168181/09-142-1421)

1 June

The Regulation of FAS Moscow District (Case of 17.01.2010, № A40-168181/09-142-1421) noted that a separate division is considered established if there is evidence of a separate division under Section 2, Article. 1911 Tax Code. Including the information about the branch in the constituent documents of the applicant in its state registration indicates the intention of the founder of the Company to create a separate division and not on job creation and operation of more than a month. Date of creation and the beginning of the activities of a separate division is to conclude a lease of uninhabited premises, date of creation of jobs, recruitment director of the branch, since it is from the equipment of a stationary workstation and the beginning of the location of the unit tax law relates the creation of a separate division.

Resolution of Moscow's FAC district (case, dated 17/01/2011 № A40-168181/09-142-1421)

1 June

The Regulation of FAS Moscow District (Case of 17.01.2011, № A40-161298/09-145-585) noted that the reference in the customs declaration incorrect code TN VED of Russia goods wrongfully classified by Customs to the unlawful act, responsibility for which is provided by Part 2 Rule 16.2 of the Code of Administrative Offences. Possible discrepancy code is subject to elimination by the customs authority when verifying a customs declaration, provided that other information about the number, properties and characteristics of the goods indicated significantly.

Resolution of Moscow's FAC district (case, dated 14/01/2011 № A40-174645/09-35-1328)

30 May

The Regulation of FAS Moscow District (Case of 14.01.2010, № A40-174645/09-35-1328) noted that the withdrawal of the tax authority on the economic unreasonableness Company incurred costs inconsistent with the provisions of tax laws, because the competence of the tax authority does not include verification of incurred taxpayer costs from the perspective of their feasibility, effectiveness and efficiency.

Resolution of Moscow's FAC district (case, dated 30/12/2010 № A40-34501/10-75-156)

27 May

The Regulation of FAS Moscow District (Case of 30.12.2010, № A40-34501/10-75-156) noted that not apply to personal income and are not included in the taxable base for personal income tax and unified social tax, reimbursement of travel the employee organization including cash, issued in accountability for the purchase of tickets for the performance of work, bearing with traveling.

Resolution of Moscow's FAC district (case, dated 30/12/2010 № A40-2036/10-90-26)

25 May

The Regulation of FAS Moscow District (Case of 30.12.2010, № A40-2036/10-90-26) noted that Art. 169 of the Tax Code does not impose on the taxpayers' obligation to decrypt the signature (s) of the head and chief accountant of the invoice, so the failure to refund VAT on the stated reason contradicts item 2, Art. 171, Section 3, Article. 172, Art. 169 of the Tax Code.

Resolution of Moscow's FAC district (case, dated 14/01/2011 № A40-174645/09-35-1328)

23 May

The Regulation of FAS Moscow District (Case of 14.01.2010, № A40-174645/09-35-1328) noted that, in accordance with paragraph 7 of Article. 259 of the Tax Code (from 1.1.2011, — the n. 1, Art. 259.3 of the Tax Code) in respect of depreciable assets used for work in aggressive environment or increased shift to accelerated depreciation the taxpayer is entitled to apply a special coefficient, but not higher 2. Fact increased shift in production in the workshops, carried out by the taxpayer, is confirmed by evidence presented in the materials of the case: full-time schedules for workshops, working hours, replaceable rapport monthly report cards are working. In addition, tax law does not provide a clear list of documents required to provide evidence for increased shift work.

Resolution of Moscow's FAC district (case, dated 29/12/2010 № A40-8556/10-140-91)

20 May

The Regulation of FAS Moscow District (Case of 29.12.2010, № A40-8556/10-140-91), with reference to paragraph 2 of Art. 211, Section 3, Article. 217 of the Tax Code, Art. 196 TC RF noted that payment of the cost of training workers is not included in their income, if training is provided by the employer in order to more effectively perform the functions of labor workers.

Resolution of Moscow's FAC district (case, dated 29/12/2010 № A40-86768/08-112-449)

19 May

Resolution of the Federal District of Moscow (the case on 29.12.2010, № A40-86768/08-112-449) to the taxpayer refused to invalidate the decision of the tax authorities of the accrual of income tax, VAT, as the court in a case not established a manifestation of society should prudence and caution in selecting their contractors as well as in contract, signing acts and payment of services rendered, it is not asked about the presence of active CEOs, authorized to sign financial and economic documents, and examined the credentials of the persons with whom negotiated.

Resolution of Moscow's FAC district (case, dated 28/12/2010 № A40-168732/09-127-1389)

18 May

The Regulation of FAS Moscow District (Case of 28.12.2010, № A40-168732/09-127-1389) noted that under Secs. 2, paragraph 3, Article. 257 of the Tax Code to intangible assets include the exclusive right of the author and copyright holder to use a different computer programs, databases. Standards of Chapter 25 of the Tax Code does not prescribe a uniform recognition of the cost of purchasing software for the period for which granted non-exclusive right to use them. According to Secs. 26 n. 1, Art. 264 of to the other costs associated with production and sales include costs associated with the acquisition ofrights to to use computer programs and databases under contracts with the owner ( of licensing agreements ).

Resolution of Moscow's FAC district (case, dated 28/12/2010 № A40-168732/09-127-1389)

17 May

The Regulation of FAS Moscow District (Case of 28.12.2010, № A40-168732/09-127-1389) noted that from paragraph 1 of Art. 257 of the Tax Code does not directly imply that the costs of certification of equipment related to costs for its acquisition, construction, fabrication, delivery, bringing to usable condition, so in this case it is possible to use paragraphs. 2 of Section 1, Art. 264 of, according to which the other costs associated with production and sales include the cost of certification of products and services.

Resolution of Moscow's FAC district (case, dated 30/07/2010 № A41-30741/09)

16 May

Resolution of the Federal District of Moscow (the case on 30.07.2010, № A41-30741/09) with reference to Art. 1916 Federal Law of 25.07.2002 № 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation " and Section 3 of the Decree of the Government of the Russian Federation of 24.03.2003 № 167 recognized as lawful assignment of the expenses deductible from taxable income the cost of housing foreign citizen during his stay in Russia, under the employment agreement, on the basis of this authorization. Provision of housing for foreign nationals working in the enterprise, is the responsibility of the enterprise. These costs are incurred to enforce foreign workers of their job duties, not to meet their personal needs in housing, which confirms that they were made ​​for the implementation of productive activities. Therefore, in accordance with paragraph 49 of article. 264 of these expenses are accounted as expenses for purposes of calculating income tax.

Resolution of Moscow's FAC district (case, dated 22/12/2010 № A40-106667/09-129-1223)

13 May

The Regulation of FAS Moscow District (Case of 22.12.2010, № A40-106667/09-129-1223) noted that the legislation on taxes and duties of the Russian Federation does not bind the taxpayer's right to refer to expenses when calculating income tax expenses to the presence or absence he has a license agreement that is registered with the Federal Service for Intellectual Property, Patents and Trademarks, the right to use the trademark. In accordance with paragraphs. 28 n. 1, Art. 264 of to the other costs associated with production and sales, advertising costs are made ​​(purchased), and (or) the traded goods (works, services), the taxpayer, a trademark and service mark, including participation in fairs and exhibitions.

Resolution of Moscow's FAC district (case, dated 22/12/2010 № A40-106667/09-129-764)

10 May

The Regulation of FAS Moscow District (Case of 22.12.2010, № A40-106667/09-129-764) noted that the responsibility for drawing up invoices giving rise to the application of the tax deduction by the taxpayer - the buyer of goods (works, services) and incorporate the information specified in Article 169 of the Tax Code, for the seller. Therefore, subject to the counterparty of these requirements on registration of documents required grounds for withdrawal of the unreliability of any conflicting information contained in these invoices are not available, if not installed circumstances indicating that the taxpayer knew or should have known that the seller provides false or contradictory information. In the absence of evidence is not making business transactions, in respect of which included charges and claimed the right to a tax deduction, the conclusion that the taxpayer knew or should have known of the unreliability (inconsistency) of information can be made by the court as a result of evaluation in the complex of circumstances, related to the negotiation and execution of the contract, as well as other circumstances mentioned in the Resolution of the Plenum of the RF from 12.10.2006 № 53. Conclusion about the unreliability of the primary documents signed by persons not as identified in the founding documents of counterparties as the leaders of these companies can not own, in the absence of other facts and circumstances, considered as a basis for the recognition of tax benefits unfounded. Within the meaning of the provisions contained in paragraph 7 of Article 3 of the Tax Code, in the sphere of tax relations is a presumption of good faith. Enforcement authorities have no right to interpret the term "bona fide taxpayers' as imposing on the taxpayers additional duties not covered by the legislation, including the set of real leaders of these organizations and to investigate the authenticity of signatures on primary documents.

Resolution of Moscow's FAC district (case, dated 21/12/2010 № A40-152886/09-80-1165)

6 May

The Regulation of FAS Moscow District (Case of 21.12.2010, № A40-152886/09-80-1165) noted that the provisions of paragraph 5 of Article. 173 of the Tax Code provides that the amount of tax payable to the budget, calculated by the following persons in the case of issuing them to the buyer an invoice with an amount of tax: 1) persons who are not taxpayers, or taxpayers, exempt from the duties of the taxpayer related to the calculation and payment of tax, and 2) the taxpayer for the sale of goods (works, services), operations, implementation of which is not taxable. In this case, the amount of tax payable to the budget, defined as the amount of tax indicated in the invoice that was delivered to the buyer of goods (works, services). Consequently, invoicing with a dedicated amount of VAT on transactions that are not subject to this tax, can not serve as grounds for denying the public the right to use the tax deduction.

Resolution of Moscow's FAC district (case, dated 24/12/2010 № A40-26035/10-75-123)

5 May

The Regulation of FAS Moscow District (Case of 24.12.2010, № A40-26035/10-75-123) with reference to Secs. 16 n. 1, Art. 264 of noted that the board state and (or) private notary for notarization applies to other costs associated with production and sales and accounted for by the taxpayer in the costs when calculating income tax in the range of tariffs, approved in the prescribed manner. In this legislation the Notary does not contain mandatory requirements in order to fill the notary documents certifying the fact of providing notarial services.

Resolution of Moscow's FAC district (case, dated 14/12/2010 № A40-153275/09-142-1226)

4 May

The Regulation of FAS Moscow District (Case of 14.12.2010, № A40-153275/09-142-1226) noted that the availability of goods, works and services in a particular period is not a prerequisite for the application of VAT deduction.

Resolution of Moscow's FAC district (case, dated 16/12/2010 № A40-12606/10-140-133)

3 May

The Regulation of FAS Moscow District (Case of 16.12.2010, № A40-12606/10-140-133) noted that during the repair and overhaul of fixed assets cost to repair does not increase the initial cost of fixed assets and are included in company's costs of the fiscal year in which the repairs were made. Consequently, the diversity of information on the cost of repairs in a card form № OS-6 is for informational purposes, and graphs in this section can not be filled with accounting staff responsible for fixed assets accounting. Stated requirement of the tax authority is not based on law.

Resolution of Moscow's FAC district (case, dated 15/12/2010 № A40-139433/09-118-1206)

29 April

The Regulation of FAS Moscow District (Case of 16.12.2010, № A40-139433/09-118-1206) with reference to Secs. 25 para 1 of Art. 264 Tax Code RF of noted that the legislation on taxes and duties of the Russian Federation does not contain any requirements for mandatory verification of a production nature of each taxpayer to the fact of use of communications services.

Resolution of Moscow's FAC district (case, dated 10/12/2010 № A40-62863/10-122-366)

28 April

The Regulation of FAS Moscow District (Case of 10.12.2010, № A40-62863/10-122-366) noted that within the meaning of Article 4.5 of the Code of Administrative Offences within 2 months from the date of discovery of administrative violations must be taken is the decision of the case an administrative offense rather than draw up a protocol on administrative violation, which is proof of the case and captures the circumstances of violations.

Resolution of Moscow's FAC district (case, dated 09/12/2010 № A40-9168/10-140-103)

27 April

The Regulation of FAS Moscow District (Case of 09.12.2010 № A40-9168/10-140-103) noted that since the submission of the society as a result of loans does not arise in the implementation of the operation, there are no transactions that are exempt from VAT, respectively There are no grounds for the application of the provisions on the apportionment of the VAT and the introduction of separate accounting under paragraph 4 of Art. 170 of the Tax Code.

Resolution of Moscow's FAC district (case, dated 08/12/2010 № A40-13946/10-109-27)

26 April

The Regulation of FAS Moscow District (Case of 08.12.2010, № A40-13946/10-109-27) noted that since the directories (mailing of products offered to potential buyers) have no use value to the recipient, are in effect part 2 Art. 497 of the Civil Code means familiarize the buyer with a product offered by the seller, the courts make an informed conclusion that the directories themselves are not a commodity, in this connection their mailing does not constitute the object of VAT as a gratuitous transfer of goods by virtue of paragraph 1 of Article . 39 of the Tax Code and Secs. 1 of Section 1, Art. 146 of the Tax Code.

Decree of the Presidium of Supreme Arbitration Court of 01.03.2011, the № 13018/10

25 April

The Decree of the Presidium of Supreme Arbitration Court of 01.03.2011 № 13018/10 was noted that the labor law does not limit employers to pay workers compensation, non-labor activities. However, for tax purposes a list of payments to employees is limited. Such payments for referring to the costs into account for taxation revenue should be directly related to the performance of the employees of their employment duties under the employment relationship.

Decree of the Presidium of Supreme Arbitration Court of 01.03.2011, the № 14871/10

22 April

The Decree of the Presidium of Supreme Arbitration Court of 01.03.2011 № 14871/10 was noted that despite the fact that the organizations applying USN (STS), by virtue of Paragraph 3, Article. 4 of the Federal Law of 21.11.1996 № 129-FZ "On Accounting" are exempted from the accounting, they are obliged to keep records of fixed assets (in a particular case — the objects of real estate) and intangible assets, as well as comply with other regulations in the sphere of civil law regulation. Thus, the legislation provides for the approval procedure for a large deal (25% of the company's assets, determined on the basis of financial statements for the last reporting period preceding the date of the decision of the commission of such transactions, except transactions made in the ordinary course of business). To challenge the transaction by the Company, located on a simplified system of taxation on the grounds of its size the plaintiff must submit evidence that the transaction is the largest (in particular, to provide data accounting for the value of company assets or to require the examination to determine the value of its assets). Upon receipt of such evidence, the court rightly acknowledges the transaction null and void, and applies to it effects in the form of return of all parties received on transactions. In this case, the court invalidated a deal on the alienation of immovable property under Art. 46 of the Federal Law of 08.02.1998 № 14-FZ On Limited Liability Companies.

Resolution of Moscow's FAC district (case of 16.11.2010, № A40-17811/10-127-67)

18 April

The Regulation of FAS Moscow District (Case of 16.11.2010, № A40-17811/10-127-67) noted that paragraph 3 of Article. 170 of the Tax Code establishes the cases in which the amount of VAT, the deduction taken for goods to be restored. Shortage and theft of the item does not.

Decree of the Presidium of Supreme Arbitration Court of 01.02.2011, the № 10230/10

12 April

The Decree of the Presidium of Supreme Arbitration Court of 01.02.2011 № 10230/10 was referring to paragraph 7 of Art. 1984 Tax Code, noted that if the documents in the transaction has an invalid (nonexistent) taxpayer identification number, then this fact is sufficient grounds for charging the buyer (customer) back taxes and penalties on VAT and income tax. Other proof of tax authority may not be, because the taxpayer acted without due diligence. Court made ​​the correct conclusion that the design on behalf of a non-existent entity can not serve as the basis for cost accounting and decision-tax deductions on the value added tax.

Resolution of Moscow's FAC district (case of 12.11.2010, № A40-10103/10-140-109)

5 April

The Regulation of FAS Moscow District (Case of 12.11.2010, № A40-10103/10-140-109) noted that organizations have the right to develop his route sheet form or other document evidencing the costs incurred in the form of fuel, which should be reflected all the details provided by Section 2, Article. 9 of the Law "On Accounting". Lack of travel sheets indicate the purpose of the trip, place of origin, destination, departure time and the mark on the work undertaken in this case does not constitute grounds for the recognition of expenses not documented confirmed. Documentary evidence of the acquisition of fuel filling stations are checks that were presented to the tax audit. In addition, Russian law prohibits supervisory authorities to assess the feasibility of a business transaction.

Resolution of Moscow's FAC district (case, dated 10/11/2010 № A40-19789/10-99-72)

31 March

The Regulation of FAS Moscow District (Case of 29.10.2010 № A40-155980/09-127-1225) noted that in accordance with paragraph 11 of Part 1, Art. 264 of to the other costs associated with production and sales, include the cost of the taxpayer for the maintenance of official vehicles. Order of 18.09.2008 № 152 of Ministry of Transport of Russia approved the mandatory details and procedure for completing trip tickets. Required to specify the route of this Order is not provided.

Resolution of Moscow's FAC district (case, dated 29/10/2010 № A40-155980/09-127-1225)

28 March

The Regulation of FAS Moscow District (Case of 29.10.2010 № A40-155980/09-127-1225) noted that the transactions contemplated pp. 2 of Section 1, Art. 164 of the Tax Code shall be subject to VAT at the rate of 0 per cent, provided that the goods are placed under the export customs regime at the time of these transactions or if the nature of the operations themselves, they may only be made in respect of export goods.

Resolution of Moscow's FAC district (case, dated 21/10/2010 № A40-167992/09-13-1421)

24 March

In Resolution of FAC, District of Moscow (case, dated 21/10/2010 № A40-167992/09-13-1421) noted that the sale of goods for export are not included in the list of transactions that are exempt from taxation, and therefore the provisions of paragraph 4 of Article 149 and 170 Tax Code Russia to export transactions do not apply. Duty organizations keep separate records of operations on the sale of goods for export to the Russian Tax Code does not provide. Based on the systematic interpretation of the rules of articles 170 - 172 of the Tax Code, the courts made a valid conclusion that is proportional to determine the amounts to be deducted, including on "general business" expenses, is made in the case of specific goods (work, service) at the same time used for both operations, subject to VAT and exempt from paying this tax. In other cases, when the product is only used when performing operations that are subject to VAT, or, conversely, are exempt from paying it, the adoption of VAT is deductible in accordance with Art. Art. 171, 172 of the Tax Code in its entirety, or accounting value of goods (works, services) in accordance with paragraph 2 of Art. 170 of the Tax Code.

Resolution of Moscow's FAC district (case, dated 19/10/2010 № A40-161448/09-116-938)

21 March

In Resolution of FAC, District of Moscow (case, dated 19/10/2010 № A40-161448/09-116-938) noted that the tax law does not bind the right to tax deductions in fact reflected in the statements received earnings and payment of VAT to the budget of the supplier of goods, unless proven bad faith of the taxpayer.

Resolution of Moscow's FAC district (case, dated 20/10/2010 № A40-138714/09-90-982)

10 March

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-156412/09-126-1263) is noticed that the legislation on taxes and tax collections doesn't specify the acquired fixed assets should be reflected in what account of the business accounting, and also the order of compensation of the sums of the VAT depending on reflection of cost of the acquired fixed assets on any concrete accounts of the business accounting isn't established. Owing to item 2 of item 171 Tax Code the Russian Federations are subject to deductions the sums of the tax shown to the taxpayer at acquisition of the goods (works, services) in territory of the Russian Federation concerning the goods (works, services), the operations acquired for realization recognized as the taxation objects of the VAT. According to item 172 Tax Code the Russian Federation the tax deductions provided by clause 171 of the present Code, are produced on the basis of the invoices exposed by sellers at acquisition by taxpayers of the goods (works, services).

Resolution of Moscow's FAC district (case, dated 8/10/2010 № A40-156412/09-126-1263)

3 March

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-156412/09-126-1263) is noticed that item 1 of item 172 Tax Code the Russian Federation specifies only in the right of the taxpayer to show to a deduction in full the sums of the tax to the value added, paid to suppliers. Thus, the Code doesn't contain a prohibition on a presentation to a deduction of such sums outside of the tax period in which there was such right. Thus, declared by the taxpayer to the VAT deduction during later periods, than during the period in which there was a right to the tax deduction, doesn't break rates of the legislation on taxes and tax collections and doesn't lead to indebtedness origin before the budget as VAT non-payment in later periods is compensated by an overpayment of the same tax in the previous tax periods, owing to deduction non-use.

Resolution of Moscow's FAC district (case, dated 8/10/2010 № A40-113664/09-107-857)

25 February

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-113664/09-107-857) isn'ted the below-mentioned. According to subitem 4 of item 4 of item 45 Tax Code the Russian Federation a unique obligatory requisite in the payment order without which the obligation on tax discharge isn't considered performed - an account number of Federal exchequer and the payee's bank name in case of which wrong instructions money funds haven't arrived in budgetary system of the Russian Federation. Regarding correctness of instructions OKATO or other requisites the given clause doesn't provide requirements.

Resolution of Moscow's FAC district (case, dated 5/10/2010 № A41-18513/08)

24 February

In Resolution of FAC, District of Moscow (case, dated 5/10/2010 № A41-18513/08) is noticed that according to item 2 of item 264 Tax Code the Russian Federation the expenses suffered by a society in connection with acquisition of souvenirs and gifts, handed over by a holiday of New Year to representatives of other firms, concern expense accounts under condition of their documentary registration. The given expenses are connected with industrial activity.

Resolution of Moscow's FAC district (case, dated 30/09/2010 № A40-19787/10-111-132)

22 February

In Resolution of FAC, District of Moscow (case, dated 30/09/2010 № A40-19787/10-111-132) is noticed that the current legislation doesn't provide availability of traveling sheets as the mandatory condition for inclusion in expenses on the profits tax of costs for purchasing of combustive-lubricating materials and for application of the tax deductions under the VAT.

Resolution Presidium of Supreme Court RF signed 30/11/2010 г. № BAC-4350/10

17 February

In the Resolution of Presidium Supreme Court Russian Federation from 11/30/2010 № BAC-4350/10 it is noticed that the taxpayer in the absence of fault in fulfillment of a tax offense can't be held liable. According to subitem 3 of item 1 of item 111 Tax Code the Russian Federation the circumstance excluding fault of the person in fulfillment of a tax offense, admits accomplishment of written explanations by it about an order of calculation of the tax, given to it or an uncertain circle of persons financial, tax or other authorized body of the government (the authorized officer of this body) within its competence (the named circumstances are established in the presence of the corresponding document of this body, on sense and the maintenance concerning the tax periods in which the tax offense, irrespective of date of the edition of such document is made). If by a legal investigation the taxpayer has a corresponding written explanation (including Given to the uncertain circle of persons, published in Help Low Systems "the Konsultant +"), given by the Ministry of Finance of Russia according to item 1 of item 34.2 Tax Code Russian Federation inspection doesn't have bases for collecting of the penalty provided by item 1 of item 122 Tax Code Russian Federation.

Order of the Supreme Arbitration Court of Russia 12.01.2011 № 1

11 February

Order of the Supreme Arbitration Court of 12.01.2011, № 1, taken in connection with changes to the APC (Federal Law of 27.07.2010, № 228-FZ) adopted interim procedure for filing documents in the arbitration courts in Russian Federation electronic form. Document govern the procedure for filing documents in the arbitration courts in electronic form by filling in forms posted on the official website of the arbitral tribunal on the Internet.

Decree of the Presidium of the Russian Federation of 16.11.2010g. № 10914/09

8 February

The Decree of the Presidium of the Russian Federation of 16.11.2010g. № 10914/09 noted that there can not be retroactive Plenum of the RF or decree of the Presidium of the Russian Federation, comprising the interpretation of the law, which worsen the situation by a person engaged or brought to administrative responsibility (including following a review of newly discovered evidence an enforceable legal act). As a result of this interpretation can not get worse (compared with the interpretation of previously settled in the jurisprudence) and the position of taxpayers, since by virtue of Articles 54 and 57 of the Constitution is inadmissible giving retroactive laws that worsen the position of taxpayers, including, as noted in ruling of the Constitutional Court of the Russian Federation of 08.10.1997 № 13-II, in the acts of an official or a different interpretation or in law enforcement.

Resolution of the Federal District of Moscow № A40-119286/09-140-868

2 February

The Decree of the Presidium of the Russian Federation of 16.11.2010g. № 10914/09 noted that there can not be retroactive Plenum of the RF or decree of the Presidium of the Russian Federation, comprising the interpretation of the law, which worsen the situation by a person engaged or brought to administrative responsibility (including following a review of newly discovered evidence an enforceable legal act). As a result of this interpretation can not get worse (compared with the interpretation of previously settled in the jurisprudence) and the position of taxpayers, since by virtue of Articles 54 and 57 of the Constitution is inadmissible giving retroactive laws that worsen the position of taxpayers, including, as noted in ruling of the Constitutional Court of the Russian Federation of 08.10.1997 № 13-II, in the acts of an official or a different interpretation or in law enforcement.

Resolution of the Federal District of Moscow № A40-154850/09-142-1244

30 January

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.09.2010, № A40-154850/09-142-1244) noted that the mere absence of the travel data sheets about the route of the vehicle can not be a sufficient reason to exclude the cost of the tax base if the evidence of the use of cars solely for personal purposes by the tax authority has been submitted. Expenses of the organization for the purchase of fuels and lubricants accounted for either as part of material costs in accordance with paragraphs. 5 para 1, Art. 254 of the Tax Code or as part of the expenses of the maintenance of official vehicles by virtue of paragraphs. 11 para 1 of Art. 264 Russian Federation, that is, depending on the purpose of transport used. To confirm the validity of the expenses incurred by society were represented logs, and confirmation of payments made - checks to pay for fuel and staff expense reports. According to the Guidelines for reimbursement of expenses be reimbursed only business expenses on the basis of original documents submitted an expense report after authorization by the staff. That is, to the advance reports are attached initially documents relating only to business expenses. In approving the expense report supervisor checks the validity of expenses. Approved an advance report goes public accountant who, in turn, checks the advance report and attached documents to ensure compliance with legislation and internal procedures (including those based on the data sheet on the track driven kilometers monitors compliance with internal rules of spending Fuels and lubricants).

Resolution Presidium of Supreme Court RF signed 16.11.2010 № BAC-4451/10

21 January

Presidium Resolution of the Supreme Court RF, as of 16.11.2010 № BAC-4451/ has invalidated the decision of tax authority on value added accrual of property tax, penalty and fine, since court were legitimately guided by the fact, that the object of real estate did not meet characteristics of an asset while being unavailable for use at the moment of receipt of a permission for exploitation and prolonged renovation works in order to make the object useful for operation following receipt of the permission.

Resolution of the Federal District of Moscow № A40-136245/09-114-1045

14 December

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 03.09.2010, № A40-136245/09-114-1045) is recognized as legitimate by which organizations hospitality and accounting for tax purposes the cost of acquisition of bouquets of fresh flowers and floral arrangements for official receptions. Court noted that, according to AP. 22 Section 1, Art. 264 Russian hospitality list is not closed. The only restriction is provided to account for such costs Article 264 of the Tax Code, is that they should not exceed 4% of the costs of an organization to pay for the reporting (tax) period.

Resolution of the Federal District of Moscow № A40-52846/08-35-191

2 December

The Decree of the Moscow District Federal Antimonopoly Service (Case of 01.09.2010, № A40-52846/08-35-191) noted that the tax deductibility of the VAT (Article 171 of the Tax Code) are made on the basis of invoices, vendors exhibited at the acquisition by the taxpayer goods (works, services). The provisions of the legislation on taxes and duties of the Russian Federation do not contain provisions prohibiting the deduction for the presentation of such amounts outside of the tax period in the light of Art. 173 of the Tax Code and the legal position set out in Decree of the Presidium of the Russian Federation of 15.06.2010, the № 2217/10. In addition, in accordance with the provision of accounting policies for tax purposes the taxpayer stated that the results obtained from the supplier invoices are recorded in the register of received invoices as they become available.

Resolution of the Presidium of the RF from 20.07.2010 № 3018/10

22 November

The Decree of the Presidium of the Russian Federation of 20.07.2010 № 3018/10 was noted that the seven-day period provided for Section 2, Art. 23 of the Tax Code to be sent to the tax authority in writing reports on the discovery in a bank checking account can not be calculated before receipt of the organization or individual entrepreneur to open a bank reports the account.

Resolution of the Federal District of the Moscow 31.08.2010, № A40-122866/09-75-899

16 November

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.08.2010, № A40-122866/09-75-899) noted that the cost of the agent that he had committed in connection with the performance of obligations under the agency agreement, if such costs are to be included in the cost principal are not recognized as an expense agent. If the agent carries costs that are not reimbursed by the principal, the agent may include these expenses in the expenses taken into account in the taxation of its profits.

Resolution of FAC, District of Moscow, signed 01.09.2010 № A40-52846/08-35-191

12 November

Resolution of FAC, District of Moscow (case, dated 01.09.2010 № A40-52846/08-35-191) with a reference to the Decision of Constitutional Court of the Russian Federation, of 02.10.2003 № 384-O, has noted that failure to fill in any parts of an invoice, unless it affects VAT payable, but rather related to additional information on transaction participants, and upon availability of evidence for existent VAT payments made to suppliers, may not be used as basis for refusal of tax deductions. The fact of a certain document found missing, should not serve as a basis for refusal of applying for a tax deduction as long as there is evidence of tax payment to the seller when making a purchase of goods (works, services) and its use in business purposes, including any other basis concerning the use of VAT reimbursement rights.

Resolution of FAC, District of Moscow, signed 31.08.2010 № A40-51604/09-143-335, № A40-96192/09-112-702 and № A40-128425/09-116-716

8 November

Resolution of FAC, District of Moscow (case signed 31.08.2010 № A40-51604/09-143-335) with a reference to article 169, 171, 172 and 252 TC RF, notes that if contract statutes do not have relevant provisions that allow to produce an act on the receipt of works finished (forms № KS-2) and a note for the costs of works finished (form № KS-3), verified through the Resolution of RSSC as of 11.11.1999 № 100, but instead have provisions for making other types of respective document, stipulated by the contract, then, pursuant to article 746, State Code of the Russian Federation, taxpayer has a right to reduce taxable profit and deduct VAT amounts.

Resolution of FAC, District of Moscow (case signed 31.08.2010 № A40-96192/09-112-702), brings to notice, that on the basis of the contents of sp. 2 p.1 article 164 TC RF, the list of services relevant to the article is not recognized as being comprehensive. The key criteria, allowing to refer controversial services to transactions liable to 0% tax rate, is their direct connection to manufacturing and sale of goods, exported pursuant to the Customs Approved use of goods.

Resolution of FAC, District of Moscow (case, signed 31.08.2010 № A40-128425/09-116-716) has recognised exclusion of advertisement costs from expenses part by Tax Dept. illegitimate if these costs are being used for third parties (official dealers) not being sister branches of structural subdivisions of the company but rather making income independently from their own commercial activity. Pursuant to sub-paragraph 28, p. 1 article 264 TC of the Russian Federation, other costs related to production and sales, include the costs of advertisement of produced (acquired) and (or) sold goods (works, services), taxpayer's activity, trademark and service trademark, as well as participation in fares and exhibitions. Pursuant to article 3, Federal law signed 13.03.2006 № 28-FL "On advertisement", information, delivered by any means, in any form and use of any type of resources, addressed to indefinite number of persons and focused on attraction of awareness towards the object of commercial, formation or support of interest to it and its market promotion. In this case, the consumers of advertisement were those individuals and legal entities who acquired full and authentic information regarding the product being sold, distributor and distributor's commercial activity, product sales and locations where the product is sold, locations of warranty services provided. This being said, the advertisement costs are economically rational and associated with commercial activity of the claimer, whose ultimate goal is acquisition of profit.

Resolution of FAC, District of Moscow signed 31.08.2010 № A40-156204/09-33-1239

8 November

Resolution of FAC, District of Moscow (case dated 31.08.2010 № A40-156204/09-33-1239) has recognized arguments of Tax Department illegitimate with regards to the issue that an independently composed way bill does not contain requisites regarding vehicle itinerary of travel, which does not serve as evidence that the vehicle was used in business purposes, that such requisites are compulsory and reflect the content of economic transaction, and they are not acceptable due to the following reasons. Taxpayer is not regarded as a specialized auto transport company and does not provide transport services for third party companies. Forms of way bill, verified by the Resolution of RSSC of the Russian Federation, as of 28.11.1997 № 78, referred to by the Tax Department, are applied on compulsory basis by specialized auto transport organizations. Other organizations may develop their own form of way bill or another document that would confirm amounts spent on fuel. The case material concludes that the company order validates the form of way bill for a car. Pursuant to the order, vehicles should be used exclusively in business purposes. Monthly way bills, registered according to an independently developed form, contain all necessary requisites, stipulated by Federal law "On accounting", as well as data allowing to determine the volume of petrol that has been used: remainder of petrol at the time of departure, remainder of petrol at the time of entry, petrol refill and vehicle's mileage according to speedometer. The court has established that with regards to the issue being disputed, the tax authority has not provided sufficient evidence for respective motives of its decision to reduce the base of taxable income.

Resolution of FAC, District of Moscow, signed 30.08.2010 № A40-96192/09-112-702

5 November

Resolution of FAC, District of Moscow, (case signed 30.08.2010 № A40-96192/09-112-702) makes a note, that pursuant to sp. 3 p. 7 article 272 TC RF the date of incurring non operational and other cost should be the date of making accounts according to statutes of concluded contracts or the date the taxpayer was provided with documents, serving as the basis to make calculations. In compliance with accounting policy for taxation, if there are any recalculations or reconciliations conducted in the following periods, then with regards to the corrected amounts, the time of costs recognition, in taxation purposes, should be a fixed date of documents provision in a society. Respectively, this should be the date of bilateral signing of an act. Therefore, assignation of costs in the taxation period, where the society received relative documents is lawful.

Resolution of FAC, District of Moscow, signed 30.08.2010 № A40-96192/09-112-702

5 November

Resolution of FAC, District of Moscow (case dated 30.08.2010 № A40-96192/09-112-702), brings to notice, that pursuant to sp. 13 p 1 article 265 TC RF, non operational expenses include the costs in form of fines recognized by the debtor, penalties and (or other) sanctions for violation of contractual or loan liabilities. The specified norm does not associate the right of taxpayer to assign penalties and fines to non operational costs with a compulsory presence of a contractual statute to pay them in the event of violation of contract liabilities, but rather associates them with the fact of debtor's recognition of them. In present case, society's recognition of penalty sanctions has been confirmed by dual reconciliation act of accounts.

Resolution of FAC, District of Moscow, signed 20.08.2010 № A40-98565/09-76-675

2 November

Resolution of FAC, District of Moscow, (case dated 20.08.2010 № 40-98565/09-76-675) brings to notice, that statutes of the article 169 TC RF do not contain requirements to provide a specific supplier's address. It may be either legal or actual address. In the event, if supplier specifies incorrect address in an invoice, it should not serve as a basis for refusal of tax deductions, since there is no such correlation stipulated by tax regulations. Besides, responsibility for correct fill-in of invoices lays on supplier of goods (works, services). Therefore, a buyer who received a valid invoice, in terms of requirements specified in p.5 article 169 TC RF, from supplier, has a right to declare a tax deduction for the amount specified in the invoice.

The resolution of Presidium VAS the Russian Federation from 7/6/2010 № 2604/10

29 October

Resolution of SAC Presidium of the Russian Federation, as of 06.07.2010 № 2604/10 states, that the restrictions for the use of VAT deductions are stipulated on in t. 1 p. 7, article 171 TC of the Russian Federation which only mentions business trip costs and representative costs. Based on systematic interpretation of p. 7 article 171 TC RF and ch. 25 TC RF, there is an ongoing dispute with regards to establishing normative rules for VAT deduction only in relation to the specified costs. It is illegitimate to assign p. 7 article 171 TC of the Russian Federation with significance of a separate standard and extend the right of standardization to all types of costs which, pursuant to ch. 25, TC RF have to be calculated based on established standards.

Resolution of Moscow's FAC district (business from 30/07/2010 № A40-2254/09-98-9)

25 October

Resolution of FAC, District of Moscow (case signed 30.07.2010 № A40-2254/09-98-9) with a reference to p. 2 article 9 of the Federal law, as of 21.11.1996 № 129-FL "On accounting", notes, that if certain content of services provided is identified in the agreement itself, it is not reasonable to transfer each type of economic transaction (name of specific transaction) from contract and if specifying abbreviated name with a reference to respective contract in the act of works finished (services provided), fully responds to the requirements of account and fiscal accounting. Resolution of FAC, District of Moscow (case signed 30.07.2010 № A40-2254/09-98-9), brings to notice, that tax legislation does not stipulate requirements for documents, that may be used to confirm economic legitimacy of costs, there is no particular list or form stipulated for such documents. As a result of this, taxpayers, for the purpose of confirming economic legitimacy of costs, may use any available organizational/management document that would verify the purpose of incurring specified costs.

Resolution of Moscow's FAC district (business from 30/07/2010 № A40-135800/09-126-1034)

22 October

Resolution of FAC, District of Moscow (case, of 30.07.2010 № A40-135800/09-126-1034) with a reference to p. 2 article 259 and p. 3 article 272 TC of the Russian Federation has recognized the decision of Tax Department on laying additional charges on income tax illegitimate for the following reason. The argument of inspection with regards to the calculation of depreciation amounts subject to be entered under costs, should be carried out based on the share of property lent out, while registration of depreciation amounts in the months of fiscal period, when the claimer did not have any profit is not legitimate, verified by courts and recognized groundless.

Resolution of FAC, District of Moscow (case, signed 29.01.2010 № A40-17688/10-140-162)

18 October

Resolution of FAC, District of Moscow (case, signed 29.01.2010 № A40-17688/10-140-162) brings to notice that admission of a three year term for return of an offset of tax, stipulated by article 78 TC RF, does not prevent taxpayer from addressing court with a lawsuit to return the overpaid amount from the budget according to the order of civil or arbitral judicial scrutiny, in which case, general rules for calculation of claim’s term apply — starting with the date when an individual found out or should have found out about violation of his/her right.

Resolution of Moscow's FAC district (business from 28/07/2010 № A40-119877/09-80-909)

15 October

In Resolution FAC of the Moscow district (28/07/2010 № A40-119877/09-80-909) is noticed that representation by the tax bearer of the issued documents all properly provided by the law, with a view of reception of tax benefit is the basis for its reception if by tax department it is not proved that the data containing in these documents, are incomplete, doubtful, inconsistent. The fact of infringement by the counterpart of the tax bearer of the tax duties in itself isn't the proof of reception by the tax bearer of unreasonable tax benefit.

Resolution of Moscow's FAC district (business from 28.07.2010 № A40-70460/09-111-438)

11 October

In Resolution FAC of the Moscow district (28/07/2010 № A40-70460/09-111-438) recognized as lawful solution to the tax authority of the inclusion of the non-operating expenses of interest on debt, because the tax authority legitimately calculated maximum amount of interest to be expensed under Art. 269 ​​of the Tax Code, and the taxpayer has no reason to attribute part of the cost of interest accrued in excess of amounts recognized as an expense for tax purposes. In violation of the requirements of paragraph 1 of Article 269 of the Tax Code in order for the accounting policy for tax purposes, society can not determine what debt should be considered comparable. In the absence of criteria defined in the accounting policy, the company decided that all credit agreements contain a comparable credit terms.

Resolution of FAC, District of Moscow (case signed 17.06.2010 № A40-96437/09-112-707)

5 October

Resolution of FAC, District of Moscow (case signed 17.06.2010 № A40-96437/09-112-707) brings to notice, that pursuant to p.i. 1 p. 2 article 269 TC RF special rules of determination for the marginal amount of interest recorder for the purpose of taxation on liabilities, recognized as controlled liability, should be applied only if the amount of controlled liability on the last date of respective accounting period exceeds the difference between the amount of assets and the amount of taxpayer’s liabilities by more then 3 fold. As stipulated by court authorities in a just manner, the difference between assets and taxpayer’s liabilities should be defined in compliance with the Order on evaluation of the cost of net assets of joint stock companies, confirmed by the order of the Ministry of Finance of the Russian Federation and FCSM of the Russian Federation as of от 29.01.2003 № 10n/03-6/pz, including provisions of p. 2 article 269 TC RF, i.e. by way of deducting the taxpayer’s liability amounts from asset amount taken for calculation, and adding liability of taxes and levies to this result.

Resolution of FAC, District of Moscow (case signed 16.06.2010 № A40-125078/09-126-900)

28 September

Resolution of FAC, District of Moscow (case signed 16.06.2010 № A40-125078/09-126-900) Notes that, pursuant to sp. 10 p. 1 article 264 TC of the Russian Federation, other production and sales related costs include rent (leasehold) payments for rented (accepted for a leasehold) property, as well as costs associated with acquisition of property, transferred into leasehold. The society used disputable accommodation in order to conduct real commercial (tourist oriented) activity, directed towards acquisition of profit, while there were not predicaments associated with documents confirming rent costs and building related services. In present legal situation, courts have used article 252, 264 TC of the Russian Federation and came to conclusion that costs associated with rent and services regarding the accommodation are documentary verified and have sufficient economic grounds. In case if Society violates Housing Code of the Russian Federation, as referred to by tax authorities, Society could be brought to justice pursuant to the current legislation.

Resolution of FAC, District of Moscow (case signed 11.06.2010 № A40-69883/09-4-494)

22 September

Resolution of FAC, District of Moscow (case signed 11.06.2010 № A40-69883/09-4-494) notes that the list of other costs associated with production and sales, pursuant to sp. 49 p. 1 article 264 TC RF is not comprehensive. Thus the cost ok broken goods, also due expiration, irreplaceable packaging defects etc., legitimate relate to costs associated with production and sales and recorded during formation of a taxable base for the purpose of income tax calculation.

Resolution of FAC, District of Moscow (case, signed 19.05.2010 № A40-148892/09-127-1139)

21 September

Resolution of FAC, District of Moscow, (case signed 21 19.05.2010 № A40-148892/09-127-1139) with reference to article 88 TC RF, states, that in cases when tax authority, while conducting a cameral tax check, has not detected errors and other contradictions in submitted tax declaration, it does not have any basis for termination of taxpayer’s explanations or accounting documents. Resolution of FAC, District of Moscow (case, signed 19.05.2010 № A40-148892/09-127-1139) notes, that chapter 26.2 TC RF does not assume taxpayer’s obligation to provide tax authorities with purchase and sales ledger along with tax declaration for uniform tax paid subject to use of simplified taxation.

Resolution of FAC, District of Moscow (case signed 13.05.2010 № A40-105228/09-80-719)

14 September

Resolution of FAC, District of Moscow (case signed 13.05.2010 № A40-105228/09-80-719) has noted, that Tax Code of the Russian Federation does not contain regulations that allow tax authorities to evaluate costs incurred by taxpayers from standpoint of their practicality, rationality and effectiveness. According to the tenor of position stipulated by Constitutional Court of the Russian Federation, and explained in Resolution, as of 24.02.2004 № 3-P, judicial control is not obliged to check economic legitimacy of decisions, made by subjects of commercial activity, that have autonomy and wide discretion. Also, courts came out of legal position of Constitutional Court of the Russian Federations, explained in Definitions, as of 04.06.2007 № 320-О-П и № 366-O-P, pursuant to which, due to principle of freedom with regards to economic activity, taxpayer does it at his own risk and has a right to independently and unanimously evaluate its effectiveness and practicality. This being said, courts have justly declined claims of inspection on economic illegitimacy of costs incurred by society, as it contradicts legal regulation on taxes and levies.

Resolution of FAC, District of Moscow, (case signed 13.05.2010 № A40-112158/09-93-975)

13 September

Resolution of FAC, District of Moscow (case signed 13.05.2010 № A40-112158/09-93-975) has recognized it legitimate to bring an organization to justice for administrative violation, stipulated by article 15.1 Administrative Offences Code of the Russian Federation (violation of the order on operations with cash and order of conducting cash transactions …) due to the following circumstances. The Tax Department has stipulated, that over the auditable period, fiscal report related date does not correspond to the date, reflected in cashier’s register, cashier’s book. Thus, the data, reflected in the cashier’s book, as of 26.05.2009 contain amount of 10487 rubles as entered in the books, while data of fiscal memory of CRE reflect an amount of 10892 rubles, documentary unverified difference (no entry, or not adequate entry) came to 405 rubles. Thus, the fact of incomplete entry of cash into cash register – 405 rubles, leading to violation of statutes of the Law on use of CRE, Law № 129-FL 21.11.1996 “On accounting”, points 13,22,24 of the “Order on cashier operations in the Russian Federation”, verified by Letter of Central Bank of the Russian Federation, as of 04.10 1993, № 18, has been established and society has been justly brought to administrative justice.